Fordham Undergraduate Law Review: Volume IV (Spring 2021) by Fordham Undergraduate Law Review

FORDHAM UNDERGRADUATE LAW REVIEW FOURTH

EDITION

ARTICLES & NOTES INVOLUNTARY BUT NOT INTERDICTED Madalyn Stewart

ARE LIVE LINEUPS OBSOLETE? Margaret Franzreb

A SCALPEL RATHER THAN A BULLDOZER Caroline Morris

PRESUMPTION OF ABUSE Thomas Murray

THE FOURTH AMENDMENT AND THE CONSTITUTIONALITY OF DRUG TESTING Valeria Venturini

EXAMINING FEDERAL GOVERNMENTAL ROLE IN EDUCATION Brian Inguanti

WHITE-AMERICAN HETEROPATRIARCHY April Gore

MISSING AND MURDERED INDIGENOUS WOMEN Elizabeth Hartnett

THE LEGALITY OF THE TRUMP ADMINISTRATION’S ZERO-TOLERANCE POLICY Elizabeth Lebci

PROBLEMS UNDERLYING TRUMP V. HAWAII Henry Maguire and Caroline Morris

FORDHAM UNDERGRADUATE LAW REVIEW FALL 2020 SPRING 2021

Edited by the Undergraduates of Fordham University

LETTER FROM THE CO-EDITORS-IN-CHIEF

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August 31, 2021 Dear Reader: It is our honor to introduce the Fourth Volume of the Fordham Undergraduate Law Review (FULR). The writers presented in this Volume have tackled some of the world’s most pressing, and in some cases contentious, legal issues, including topics of healthcare legislation, immigration and due process, and bankruptcy law. The writers presented in this Volume have seized on an opportunity to learn more about complex legal topics surrounding peoples’ everyday lives, and through doing so, they have displayed ingenuity, ambition, and a constant dedication to questioning the world around them. The scholarly legal arguments presented in this Volume will help further the evergrowing discussions in various legal arenas. We owe a great debt of gratitude to the members of our outstanding Editorial Board. Because of their steadfast leadership, the FULR has become not only one of the largest publications at Fordham University, but an outlet for students to explore legal fields, delve into the complexities of legal research, and better prepare students for a future in legal endeavors. With over 300 writers and editors, the FULR has become a symbol of Fordham University’s commitment to undergraduate research. Even more impressively, the FULR is now recognized as a national pre-law voice among the undergraduate law journal community. Despite the challenges presented by the COVID-19 pandemic, our dedicated writers and editors have persevered courageously. Throughout the writing of this Volume, our Senior Editors and Staff Writers have stayed engaged with our meetings and workshops on Zoom and in one-on-one calls, made use of our Style Guide and Writer’s Packet, and offered complex legal arguments. For this, we are both incredibly thankful and impressed. We would also like to thank everyone in the Fordham University community who has made this Volume possible. We owe special thanks to Dean Mantis and Father Horan, our faculty advisors, for their guidance throughout the publication process. Please do not hesitate to reach out to the Editorial Board at fulr@fordham.edu to share your comments. Sincerely, Reeve Churchill, Incoming President & Co-Editor-in-Chief, 2021-2022 Caroline Morris, Incoming Co-Editor-in-Chief, 2021-2022

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INVOLUNTARY BUT NOT INTERDICTED: THE LEGACY OF FORCED STERILIZATIONS OF LATINX WOMEN IN THE UNITED STATES Madalyn Stewart ............................................................................................ 1 ARE LIVE LINEUPS OBSOLETE? WHY HENDERSON SHOULD REPLACE CURRENT SUPREME COURT PRECEDENT FOR IDENTIFICATION PROCEDURES Margaret Franzreb ...................................................................................... 21 A SCALPEL RATHER THAN A BULLDOZER: SEVERABILITY AND THE AFFORDABLE CARE ACT Caroline Morris ........................................................................................... 35 PRESUMPTION OF ABUSE: HOW BAPCA UNDERMINES THE BANKRUPTCY SYSTEM Thomas Murray ............................................................................................ 50 THE FOURTH AMENDMENT AND THE CONSTITUTIONALITY OF DRUG TESTING IN THE WORKPLACE: ASSESSING POLICY AND PRACTICE Valeria Venturini.......................................................................................... 64 EXAMINING FEDERAL GOVERNMENTAL ROLE IN EDUCATION Brian Inguanti .............................................................................................. 73 WHITE-AMERICAN HETEROPATRIARCHY: A RACE-GENDER ANALYSIS OF JAPANESE AMERICAN WORLD WAR II CASES April Gore .................................................................................................... 90 MISSING AND MURDERED INDIGENOUS WOMEN AND THE REAUTHORIZATION OF THE VIOLENCE AGAINST WOMEN ACT Elizabeth Hartnett ...................................................................................... 101 THE LEGALITY OF THE TRUMP ADMINISTRATION’S ZERO-TOLERANCE POLICY AND FAMILY SEPARATION Elizabeth Lebci ........................................................................................... 111 PROBLEMS UNDERLYING TRUMP V. HAWAII: AN ANALYSIS OF THE IMMIGRATION AND NATIONALITY ACT Henry Maguire and Caroline Morris......................................................... 125

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EDITORIAL BOARD TYLER RACITI Editor-in-Chief REEVE CHURCHILL Co-Managing Editor

JENNIFER RIVERO Co-Managing Editor

CAROLINE MORRIS Executive Articles Editor

ARIANNA CHEN Executive Online Editor

JONATHAN KATZ Business Administrator SENIOR EDITORS ALLEYAH ALLY SYDNEY BECK MARY CACEVIC APRIL GORE ELIZABETH HARTNETT FAHIMA HUSSAIN

KEVIN JAMES CHRISTOPHER KERRANE HENRY MAGUIRE GABRIELLA MANGOME MARGARITA MCCOY MADALYN STEWART

NICHOLAS SUIT KATHERINE TIMOFEYEV ZEKE TWEEDIE ANTHONY VU NICHOLAS WOLF SAMANTHA WONG

STAFF WRITERS MIA AGOSTINELLI BRIANA AL-OMOUSH NATALIE BLAIR RUBEN ÇAĞINALP NICOLE CAPASSO MARY DONNELLY

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DEAN HILLARY MANTIS, J.D. Faculty Mentor

MICHAEL LEIFER THOMAS MURRAY MICHAEL PERSAUD DANIELLE POOLE ANNA NOWALK VALERIA VENTURINI

FATHER BRENDAN HORAN, S.J. Faculty Advisor

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The Fordham Undergraduate Law Review (FULR) is an entirely student-run scholarly journal at the undergraduate level for the Fordham University and legal community. Our publication includes a wide array of topical and historical legal issues covering both domestic and international affairs in its scope. FULR is a coveted opportunity for high-achieving, exceptional writers examining a range of disciplinary lenses as it relates to the nuances of law. In this pursuit, we have forged a driven, competitive community of students that engage in fruitful discussions on various legal issues. These exceptional attorneys of tomorrow are given opportunities for publication and admitted to pre-law networking events with distinguished Fordham alumni. Learn more about opportunities to join our team at fulr@fordham.edu.

INSTITUTIONAL PARTNERS ROSE HILL DEAN’S OFFICE, Fordham College at Rose Hill PRE-LAW ADVISING OFFICE, Fordham College at Rose Hill & Lincoln Center OFFICE OF STRATEGIC INITIATIVES, Fordham College at Rose Hill OFFICE OF STUDENT INVOLVEMENT, Fordham College at Rose Hill PRE-LAW SOCIETY OF ROSE HILL & LINCOLN CENTER, Fordham College at Rose Hill & Lincoln Center Thank you to our institutional partners for their supportive mentorship and financial assistance. Without their help, this volume would not have been possible.

The views expressed by the contributors are not necessarily those of the Editorial Board or the institutional partners of the Fordham Undergraduate Law Review. While every effort has been made to ensure the accuracy and completeness of information contained in this journal, the Editors cannot accept responsibility for any errors, inaccuracies, omissions, or inconsistencies contained herein. No part of this journal may be reproduced or transmitted in any form or by any means, including photocopying, recording, or by any information storage and retrieval system, without permission in writing. The authors who submitted their work to the Fordham Undergraduate Law Review retain all rights to their work. Fordham Undergraduate Law Review Volume IV, Issue I, Spring 2021 undergradlawreview.blog.fordham.edu

ARTICLE INVOLUNTARY BUT NOT INTERDICTED: THE LEGACY OF FORCED STERILIZATIONS OF LATINX WOMEN IN THE UNITED STATES Madalyn Stewart*

Historically, nativism has arisen in direct response to waves of immigrants coming into the United States and has produced false narratives of immigrant overpopulation to rationalize discriminatory treatment and policies. This Article contextualizes recent instances of involuntary sterilizations of women detained in United States Immigration and Customs Enforcement (I.C.E.) detention centers as part of a larger history of nativism and reproductive control over Latinx women. In Section II, this Article establishes criteria for informed consent using federal regulations, state law, and case law. These criteria will act as a tool to frame, compare, and connect instances of sterilization. Beginning with Buck v. Bell (1927) in Section III and the rise of eugenical sterilization, this Article demonstrates that the nonconsensual sterilizations permitted by this legislation targeted women, specifically Latinx women. From this premise, Section IV identifies the systematic sterilization of Latinx women in Puerto Rico as nativist population control policy touted as a woman’s right to choose. Using the aforementioned criteria for informed consent, this Article illustrates the fundamentally coercive nature of these sterilizations, along with the postpartum sterilizations of Mexican American women outlined by Madrigal v. Quilligan (1978) in Section V. Ultimately, this Article asserts that forced hysterectomies performed on women detained along the Southern border are an extension of this dark, nativist history. Thus, a standard for informed consent must be codified into federal law and, on this basis, the Biden Administration and Congress should interdict forced sterilizations in any I.C.E. facilities.

* B.A. Candidate for Political Science and French Studies, Fordham College at Lincoln Center, Class of 2022. The opportunity to write this Article was only made possible by the incredible guidance of the Fordham Undergraduate Law Review and its Editorial Board. In particular, I would like to thank Senior Editors Nicholas Suit, April Gore, and Kevin James who gave helpful feedback throughout the editing process. Also, a special thanks to Caroline Morris, Executive Articles Editor, for offering enthusiastic support and direction from the beginning, even as my vision and Article undertook several significant edits.

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I. INTRODUCTION ............................................................................................2 II. ESTABLISHING CRITERIA FOR CONSENT .....................................................4 III. EARLY EUGENICAL STERILIZATION ...........................................................6 A. The Question of Consent for the “Feeble-minded” ............................7 III. PROPAGANDA IN PUERTO RICO: STERILIZATION AS BIRTH CONTROL .......9 A. Contextualizing Consensual Sterilizations ......................................11 IV. THE STERILIZATION OF MEXICAN AMERICAN WOMEN ...........................13 A. Blatant Disregard for Consent ..........................................................15 B. The Ruling Versus the Aftermath ......................................................16 V. STERILIZATIONS ON THE BORDER .............................................................18 VI. CONCLUSION ...........................................................................................19 I. INTRODUCTION Nativism is a historically recurrent byproduct of waves of immigration and the subjective subsequent perception of overpopulation. Baseless notions of genetics in the late nineteenth and early twentieth century propelled both “scientific nativism” and eugenics, largely under the notion of Social Darwinism.2 In sum, ill-founded science was a mechanism to posit inferiority among people on the basis of race, physical ability, mental capacity, and other discerned differences deemed hereditary, especially impacting those who were foreign-born. The results of research into ‘degeneracy’ in the Jukes and Kallikaks families, for example, were essential to establishing that scientific proof of heredity was misrepresented to perpetuate discrimination, as these studies were designed with a biased intent to “rationalize principles of negative eugenics.”3 Eugenicism and nativism both promulgated unfounded genetic theory through the advocacy of public policy that would allow for government control over human reproduction. Specifically, the eugenics movement supported policies rooted in “population politics, family planning,

David Sowell, Nativism, Eugenics, and White Nationalism: A Casual or Causal Relationship, 17 JUNIATA VOICES 175, 176 (2017). 3 See Phillip Reilly, Involuntary Sterilization in the United States: A Surgical Solution, 62 THE QUARTERLY REVIEW OF BIOLOGY 153, 153-54 (1987). These studies claimed that the Jukes’ family tree revealed a “propensity for almshouses, taverns, brothels, and jails” (1875) and that the Kallikaks had a history of ‘feeblemindedness’ (1912). Moreover, because these less desirable traits were repeated across generations, they were considered hereditary, which fueled the promotion of a medical sterilization solution. 2

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disease prevention, public cost control and other fields of activity”4 that would select only the more ‘desirable’ traits. In a similar manner, nativism fostered anxieties, and policy by extension, with the attempt to protect the interests of “natives” born within the country over those of arriving immigrants. The particular establishment of involuntary sterilization as a facet of this population control policy followed several preliminary “scientific” studies and trials. First authorized in Indiana in 1907,5 sterilization laws which targeted individuals in mental institutions would soon be passed in over thirty states6 and upheld by the Supreme Court in Buck v. Bell (1927). These practices introduce the focus of this Article on the legal precedents weaponized against Latinx women and, ultimately, women in Immigration and Customs Enforcement (ICE) facilities. This Article contends that the commonalities of this history are its roots in nativism, along with the questionable legitimate consent provided by many Latinx victims of sterilization. For context, this Article first establishes a definition of and criteria for informed consent in the law, particularly as it relates to sterilization procedures. Ultimately, this Article argues that extrajudicial sterilization cases in United States Immigration and Customs Enforcement (I.C.E.) detention centers demonstrate the continued vulnerability of Latinx women to involuntary sterilizations. On this basis, both of continued relevance and absolute urgency, this Article argues for the explicit prohibition of extrajudicial, forced sterilization in I.C.E. facilities by both the Biden Administration and Congress to ensure short- and long-term protections for Latinx immigrants, along with the authorization of a uniform consent law at the federal level.

Jakob Tanner, Eugenics Before 1945, 10 JOURNAL OF MODERN EUROPEAN HISTORY 458, 460 (2012). 5 Reilly, supra note 3, at 154. 6 See Virginia R. Espino, Women Sterilized as They Give Birth: Population Control, Eugenics, and Social Protest in the Twentieth-Century United States, ARIZONA STATE UNIVERSITY, 72 (2007). 4

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II. ESTABLISHING CRITERIA FOR CONSENT Historically, a patient’s right to informed consent for medical operations has been largely unprotected.7 In fact, the notion of medical paternalism has resulted in the discretion of the physician often being favored over the considerations of the patient.8 Today, it is generally understood that written consent is “ethically, morally, and legally mandated”9 before any medical procedure, such as sterilization. Notably, in response to an alarming number of involuntary sterilizations which occurred in the twentieth century, the United States Department of Health, Education, and Welfare (H.E.W.) established a standard for sterilizations.10 However, these regulations are limited in scope as they only pertain to sterilization cases involving institutions that utilize federal grants. Thus, it is often the responsibility of state legislature, state courts, and private institutions to uphold adequate requirements for informed, patient-centered consent. With this in mind, the current criteria for consent can be established based on court rulings at the state level, along with the standards outlined by H.E.W. in 1979. The basic right to medical consent was most clearly affirmed in Schloendorff v. Society of New York Hospital (1914), written by then-Judge Benjamin N. Cardozo, which asserted that “every human being of adult years in sound mind has a right to determine what shall be done with his own body.”11 More specifically, legislation and court cases in later decades indicate that there are several circumstances that should be grounds for malpractice or negligence on the part of the physician. For example, consent is voided in instances where the “performance of procedures” differs from what was initially described and consented to,12 or in cases where risks13 and

Peter Murray, The History of Informed Consent, 10 THE IOWA ORTHOPEDIC JOURNAL 104, 109 (1990). 8 Id. 9 Timothy J. Paterick et al., Medical Informed Consent: General Considerations for Physicians, 83 MAYO CLINIC PROCEEDINGS 313, 313 (2008). 10 Brint Dillingham, Sterilization: A Conference and a Report, 4 AMERICAN INDIAN JOURNAL (1978). 11 Schloendorff v. Soc’y of N.Y. Hospital, 211 N.Y. 125 (N.Y. App. Div. 1914). 12 See Neil C. Abramson, A Right to Privacy Tour de Force into Louisiana Medical Informed Consent, 51 LA. L. REV. 755, 756 (1990). 13 See Bang v. Charles T. Miller Hospital, 251 Minn. 427 (Minn. 1958). 7

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alternative options14 were not disclosed. Furthermore, “any consent given under physical or mental duress” was deemed illegitimate in Relf v. Weinberger (1974).15 In addition, the importance of requiring a patient’s consent specifically in their native language was established in Madrigal v. Quilligan and ultimately recognized in H.E.W. regulations.16 In sum, these considerations present the following basic criteria for informed consent to medical operations: 1) The patient must be aware of and fully understand any surgery or other medical procedure that will take place. 2) The patient must be aware of any risks or complications associated with the procedure, along with the loss of any organs or organ functions that may result. 3) The patient must be aware of alternative methods of treatment available. 4) The patient must not be under physical or mental duress when providing consent to a medical procedure. 5) The patient must provide written consent in their native language to the aforementioned operation, risks, and alternative methods. Many of these criteria are central to H.E.W. requirements to allocate federal spending towards sterilization. Beyond these practices, though, there are only twenty-six states which hold particular statutory requirements for consent to healthcare treatment.17 This is not to suggest that there are no standards for informed consent in the remaining twenty-four states but rather, that this discrepancy between state and federal regulations leads to unequal and often varied protections of patients. Thus, the creation of uniform consent law in federal legislation is a necessity that has not yet been established, though needs to be. Thus, the absence of uniform consent law is critical to understanding the coercive and involuntary nature of sterilizations of Latinx

See Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. (1972). Relf v. Weinberger, 372 F. Supp. 1196 (D.D.C. 1974). 16 Dillingham, supra note 10, at 15. 17 Paterick et al., supra note 9, at 314. 14 15

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women, along with establishing a basis upon which future allegations or practices can be judged. III. EARLY EUGENICAL STERILIZATION Early, widespread practices of involuntary sterilization were by no means limited to Latinx women, though the discriminatory application of the procedure especially targeted women of color. By 1913, twelve states had passed bills to authorize compulsory sterilization in mental institutions.18 These policies were not only inspired by eugenics but often came directly from the findings of eugenicists. For example, eugenicist and physician Harry Laughlin authored “a ‘model law’ for compulsory sterilization” that would be considered standard sterilization legislation for years to come.19 Soon after, these laws became the subject of judicial concern in Buck, in which Carrie Buck, a “feebleminded” woman living at a mental institution in Virginia appealed her sterilization.20 In a resounding eight to one vote, the Supreme Court upheld the Virginia law that allowed for her sterilization. Justice Oliver Wendell Holmes Jr., writing for the majority, echoed eugenical language by stating that “defective persons” like Buck “sap the strength of the State.”21 This controversial decision has yet to be overturned. Within four years of this decision, sterilization legislation had passed in a total of thirty states.22 Under these laws, an estimated 60,000 people were forcibly sterilized in state mental institutions by the 1960s.23 In North Carolina, for example, the gender disparity was striking, with almost eighty-five percent of victims between 1929 and 1974 being women.24 It is relevant, too, that the disproportionate number of female victims increased over time. Similarly, the percentage of victims who were African American grew from twenty

See Reilly, supra note 3, at 155. Steven A. Farber, U.S. Scientists’ Role in the Eugenics Movement (1907-1939): A Contemporary Biologist’s Perspective, 5 ZEBRAFISH 243, 244 (2009). 20 Buck v. Bell, 274 U.S. 200 (1927). 21 Id. at 208. 22 Paul Lombardo, Medicine, Eugenics, and the Supreme Court: From Coercive Sterilization to Reproductive Freedom, 13 JOURNAL OF CONTEMPORARY HEALTH LAW AND POLICY 1, 1-2 (1997). 23 Farber, supra note 19, at 244. 24 See Alfred Brophy & Elizabeth Troutman, The Eugenics Movement in North Carolina, 94 N.C.L. REV. 1871, 1935 (2016). 18 19

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percent in the mid-1940s to around two-thirds by the mid-1960s.25 Data obtained in California reveals a similar pattern of disproportionality among Latinx victims, where Mexican Americans accounted for seven percent of male victims and eight percent of female victims in California, despite being only four percent of the overall state population.26 Thus, eugenics which bolstered the legal, forced sterilization of patients in mental institutions is also a reflection of sterilization as a tool for public policy rooted in nativism. Of California’s victims of sterilization, 39% of men and 31% of women were foreign-born.27 The stereotypes and discriminatory beliefs that nativism perpetuated resulted in people of Latin origins and descent being disproportionately targeted. For example, recent research in California illustrates that between 1935 and 1944, “Spanish sur-named patients were 3.5 times more likely to be sterilized than patients in the general institutional population.”28 A nativist perception of Latinx women blamed their perceived “excessive sexuality and fertility” for the apparent issue of overpopulation.29 Likewise, the aforementioned eugenicist, Harry Laughlin, asserted that “it is this high birth rate that makes Mexican peon immigration such a menace.”30 Certainly, the eugenics which brought about sterilization in state mental facilities overlapped with the nativist fear of increased immigration. Ultimately, involuntary sterilization in mental institutions acted as one of the initial solutions to this nativist concern for growing Latinx populations. A. The Question of Consent for the “Feeble-minded” Mass sterilizations within state mental facilities constitute statesanctioned, forced or “compulsory” sterilizations.31 Certainly, then, if we are Id. at 1936. Id. 27 See Alexandra M. Stern, Sterilized in the Name of Public Health: Race, Immigration, and Reproductive Control in Modern California, 95 AMERICAN JOURNAL OF PUBLIC HEALTH 1128, 1131 (2005). 28 Alexandra M. Stern, That Time the United States Sterilized 60,000 of Its Citizens, HUFFPOST POLITICS (Jan. 7, 2016), https://www.huffpost.com/entry/sterilization-unitedstates_n_568f35f2e4b0c8beacf68713. 29 Laura Briggs, Reproducing Empire: Race, Sex, Science, and U.S. Imperialism in Puerto Rico, 83 (2002). 30 Stern, supra note 27, at 1135. 31 Buck, 274 U.S. at 208. 25 26

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to use the above-established criteria of informed consent, the consent of the patient was historically disregarded. In Schloendorff v. Society of New York Hospital (1914), Judge Cardozo explicitly limited this right of consent to individuals “in sound mind.”32 This omission would potentially condone the sterilization of the “feebleminded” against their will, as the perceived absence of development and intelligence constituted the “highest” grade of mental defect.33 Thus, a paternalistic view of these “feebleminded” patients grants the State the authority to make decisions on their behalf without meeting any criteria of informed consent. And yet, there would still be significant cause to bring this reality into question within the historical precedence of a “sound mind” requirement. Firstly, the real-life application of “feeblemindedness” as a condition was quite arbitrary. The intelligence tests used to establish this diagnosis were notoriously inaccurate but were utilized regardless34 and, in other cases, no tests were administered at all.35 In fact, “feebleminded” came to be used to describe “sexual promiscuity, alcohol use, laziness, poverty, disobedience, deviancy, tuberculosis, syphilis,” and so on.36 Therefore, it is possible that patients “[with]in sound mind” were nonetheless involuntarily sterilized; this would certainly fail to meet the consent criteria established in Schloendorff. Furthermore, in Buck, Justice Holmes was explicit that his rationale for the constitutionality of forced sterilization complied with the Fourteenth Amendment right to due process. First, a petition for sterilization must be presented to the hospital, then there must be a hearing which the patient has the right to attend, and, finally, the patient is allowed to appeal the decision if they disagree.37 It was only on this basis that the justices found that “the rights of the patient are most carefully considered.”38 Yet numerous patients were not provided legitimate counsel, including Carrie Buck whose attorney

Schloendorff, 211 N.Y. at 129. Henry H. Goddard, Feeble-mindedness: Its Causes and Consequences, THE MACMILLAN COMPANY, 4 (1914). 34 John Burke, Nightmares Born of Dreams: Eugenics in Illinois, EasteRN ILLINOIS UNIVERSITY UNDERGRADUATE HONORS THESES 1, 19 (2019). 35 Michael Silver, Eugenics and Compulsory Sterilization Laws: Providing Redress for the Victims of a Shameful Era in United States History, 72 GEO. WASH. L. REV. 862, 867 (2004). 36 Burke, supra note 34, at 20. 37 Buck, 274 U.S. at 207. 38 Id. at 208. 32 33

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was a close friend of the operating surgeon and a supporter of Virginia’s sterilization law.39 Other victims were denied a hearing and due process entirely.40 Those infringements should be sufficient grounds to consider many of these sterilizations to be not only nonconsensual but also illegal and unconstitutional. So, even as state legislation and the Supreme Court justified involuntary sterilizations in these institutions – in violation of the aboveestablished criteria for consent – there are evidently grounds to invalidate the legality of many of the sterilizations that occurred under the Court’s ruling. III. PROPAGANDA IN PUERTO RICO: STERILIZATION AS BIRTH CONTROL Sterilizations in mental health facilities undoubtedly provide a legal mechanism for the coercive sterilization of Latinx women, but in practice, the vast majority of targeted operations occurred in hospitals in the form of postpartum sterilization. Puerto Rico provides an early and expansive example of this practice. Upon becoming a colony of the United States in 1898,41 Puerto Rico was governed under nativist and eugenical ideology, and the territory acted as the backdrop for exhaustive sterilizations into the 1980s.42 As early as 1937, the governor of Puerto Rico, elected by the U.S. Congress, passed Act No. 116 to legalize “eugenic sterilization.”43 While the bill cited “health reasons,” the government openly asserted the problem of “large numbers of poor and unemployed”44 people to justify strategic population control. Just as eugenicists applauded the financial benefits of sterilizing the “feebleminded,” the economic “problem of working-class women”45 was an essential motive for the U.S. government’s support for widespread, permanent birth control. This problem, more

Adam Cohen, Imbeciles, 99-101 (2016). Adam Cohen, The Supreme Court Ruling That Led to 70,000 Forced Sterilizations, NATIONAL PUBLIC RADIO (Mar. 7, 2016), https://www.npr.org/sections/healthshots/2016/03/07/469478098/the-supreme-court-ruling-that-led-to-70-000-forcedsterilizations. 41 Bonnie Mass, Puerto Rico: A Case Study of Population Control, 4 LATIN AMERICAN PERSPECTIVES 66, 66 (1977). 42 Warren et al., Contraceptive Sterilization in Puerto Rico, 23 POPULATION ASSOCIATION OF AMERICAN 351, 353 (1986). 43 Mass, supra note 41, at 68. 44 Id. 45 Briggs, supra note 29, at 74. 39 40

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specifically, stemmed from an economic and industrial “demand for cheap, unskilled female labor”46 that could evidently become threatened by Puerto Rican women who left the workforce to mother their families. In fact, 60,000 jobs were lost in the 1950s which limited Puerto Rico’s economic production.47 Unemployment on the island, therefore, was diagnosed as a “symptom of overpopulation.”48 Not only was labor in Puerto Rico an important question of profitability for the United States, but nativist attitudes had a vested interest in slowing the “huge emigration from Puerto Rico,” which began after the Great Depression.49 This economic collapse contributed to the perception that immigrants posed a competitive threat for “limited employment opportunities.”50 This nativism was an example of “hard eugenics” since many “feared the reproduction of the lower classes” and “Puerto Ricans in general”51 who sought to find better work and opportunities in mainland America. This framing of eugenic sterilization as an element of public health and economic policy mirrors that of the countless state laws for sterilization in mental institutions; however, the strong nativist support of the U.S. government, along with the breadth of this Puerto Rican legislation, resulted in a far more statistically “successful” number of Latinx women being sterilized. As the U.S. government’s endorsement of population control intensified in the 1950s, sterilization clinics and procedures were introduced rapidly and utilized regularly. A survey of Puerto Rican women from 1949 demonstrated that twenty-one percent of participants had been sterilized, and yet, by 1965, an astounding thirty-four percent of “women of child-bearing age” had been permanently sterilized, a majority of whom were in their early to midtwenties.52 Certainly, the construction of birth control clinics in the decade

Helen Safa, Female Employment and the Social Reproduction of the Puerto Rican Working Class, 18 INT’L MIGRATION REVIEW 1168, 1168 (1984). 47 César J. Ayala, Puerto Rico in the American Century: A History Since 1898, 191 (2007). 48 Elena Gutiérrez & Liza Fuentes, Population Control by Sterilization: The Cases of Puerto Rican and Mexican-Origin Women in the United States, 7 LATINO(A) RESEARCH REVIEW 85, 88 (2009-2010). 49 Mass, supra note 41, at 69. 50 Abraham Hoffman, Unwanted Mexican Americans in the Great Depression: Repatriation Pressures, 1929 – 1939, UNIVERSITY OF ARIZONA PRESS, 33 (1974). 51 Briggs, supra note 29, at 75. 52 Mass, supra note 41, at 72. 46

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before helped account for this exponential increase. This increase in rates of sterilizations would correlate closely with the 5.6% rise in female employment between 1960 and 1980.53 In 1965, Puerto Rico created a Population Office and subsequently a “mathematical formula” for determining an individual’s instability related to economic stressors and population growth.54 Similarly, the Committee for Puerto Rican Decolonization concluded that “the number of births ‘to be averted’ by 1985 should now be targeted at one million.”55 This technical language for analyzing human reproduction and “maximizing management” is an undeniable manifestation of nativism, despite being coded as practical and mathematical. This is true of any proposed sterilization solution to the issue of economic welfare. Moreover, while the original sterilization legislation and continuing programs were de jure class-indiscriminate, in practice, government agencies targeted women “with the least income and smallest amount of education.”56 The institutional outputs of this nativist mentality were the coordinated sterilization campaigns against lower-class women within social welfare programs, schools, workers’ unions and workplaces, and several other state agencies.57 The prolonged result of this campaign propaganda was achieved in 1980 when, at that point, Puerto Rico’s female sterilization rate was the highest in the world.58 A. Contextualizing Consensual Sterilizations Though the excessive sterilization rates of the Puerto Rican population was considered to be consensual, the legitimacy of consent granted at the time of the operation is questionable. The basic requirements in Sections 1 and 2 of the criteria for informed consent, which establish that the patient must be aware of the procedure and any related risks, were not always guaranteed. For example, some hospitals did not include specific “medical reasons justifying the sterilization” while others had no “notion of informed consent”

Safa, supra note 46, at 1169. Mass, supra note 41, at 73. 55 Id. at 76. 56 Id. 57 Id. 58 Gutiérrez & Fuentes, supra note 48, at 87. 53 54

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to begin with.59 Granted, in other cases, this base criterion was established, and it should be noted that many women knowingly sought out sterilizations as a means of regulating family size. However, according to Section 3, true consent is also not established if patients are not made aware of alternative methods of treatment. In regard to sterilizations, this would have meant that Puerto Rican women received and understood explanations of other methods of birth control. Yet, the U.S. government acknowledged its “preference for a rapid ‘bootstrap-style’ means to population control”60 and overtly distributed sterilization propaganda. Moreover, much criticism has been given to the sheer “absence of accessible birth control other than sterilization”61 in Puerto Rico, thereby illustrating that sterilization was the only practical and available option. Thus, it is arguable that an absence of other solutions (both for birth control and socio-economic problems) leads to restricted choice and poorly defined consent. Section 4 of the informed consent criteria is also of particular interest in each instance of postpartum sterilization specifically. On the surface, postpartum sterilizations, or sterilizations immediately following labor, were favored by physicians because they offered a level of “privacy...greater than for those visiting a birth control clinic.”62 It is not unreasonable to consider, however, the obvious levels of both “physical and mental duress” which a woman faces leading up to and during child labor. By waiting until a woman was in this “weakened state,”63 the acting physician has undermined the legitimacy of consent. Certainly, then, this history provides an example of legal shortcomings at every level of informed consent, despite the continued legality and use of sterilization in Puerto Rico to this day.64

Id. In a similar vein, Latinx women were frequently used to test other forms of birth control in “dangerous clinical trials” and it was not uncommon for these women to be utterly unaware of their participation. 60 Mass, supra note 41, at 72. 61 Id. at 77. 62 Id. 63 Id. at 78. 64 See Fernanda Alonso, Sterilization: The World’s Number One Method of Birth Control Disproportionately Affecting Women, O’NEILL INSTITUTE FOR NATIONAL AND GLOBAL HEALTH Law (Nov. 18, 2014), https://oneill.law.georgetown.edu/sterilization-worldsnumber-one-method-birth-control-disproportionately-affecting-women/#_ftn5. As of 2013, an astounding 39% of Puerto Rican women use sterilization as birth control, the highest rate of female sterilization in the world after the Dominican Republic. 59

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Ultimately, while women’s individual choices may vary in levels of affirmative, informed consent, it must be recognized that the government and hospitals which oversaw these procedures knowingly limited access to expansive birth control. Scholars account for these discrepancies in consent by contextualizing sterilization as an individual’s “agency with constraints.”65 For many women, sterilization was an active choice or, at least, a practical one, but it remains within these constraints characterized by the United States’ oversight of population reduction efforts. In this way, then, sterilization was the dominant “tool of oppression”66 over Puerto Ricans and should therefore be central to an understanding of the legacy of sterilizations of Latinx women. IV. THE STERILIZATION OF MEXICAN AMERICAN WOMEN IN THE EYES OF COURTS The Mexican American women who were involuntarily and, for the most part, unknowingly sterilized in California during the 1970s are similar to Puerto Rican women in that they were sterilized postpartum. However, this example is the first instance in which the victimization of Latinx women was detailed in a class-action lawsuit against a physician at the University of California-Los Angeles County (USC-LA) Medical Center Women’s Hospital.67 The case Madrigal v. Quilligan reflects the far-reaching nativist sentiment that is inherent to the legacy of forced sterilizations of Latinx women. As Puerto Rico established a government Population Office to reduce reproduction rates, so, too, did the United States address its perceived overpopulation problem under the Office of Economic Opportunity.68 The “funding [of] family planning programs” under both former Presidents Lyndon B. Johnson and Richard Nixon was done “quietly”69 but effectively. In response to the enduring nativist sentiment operative at both the state and

Gutiérrez & Fuentes, supra note 48, at 87. Id. at 85. 67 See Madrigal v. Quilligan, 639 F.2d 789 (9th Cir. 1978). 68 Stern, supra note 27, at 1133. The Office of Economic Opportunity added sterilization to federally funded operations in 1971. 69 Donald T. Critchlow, Intend Consequences: Birth Control, Abortion, and the Federal Government in Modern America, 50 (1999). 65 66

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federal level, the American College of Obstetricians and Gynecologists “loosen[ed] protocols for sterilization procedures” regarding consent.70 While careful to avoid using expressly eugenical or nativist language,71 these programs for population control inevitably invite the maintenance of a certain “population quality”72 based on race, class, ability, and citizenship status. In fact, the head of Obstetrics and Gynecology, Dr. Edward Quilligan, for the hospital in question, had “boasted” about receiving two billion dollars in federal funding that he would use specifically to lower birth rates among both Black and Mexican communities in Los Angeles County, according to a witness during the trial.73 Echoing this sentiment, a nurse involved in the involuntary sterilization of these Mexican American women observed that: [Mexican - origin women] weren’t really ‘American’ and [they] had come from Mexico pregnant on the bus just so that they could have their baby born a US citizen so they can’t be deported themselves. It was frequently expressed that the poor bred like rabbits and ate up money on welfare, that the women were promiscuous and just having babies because they couldn’t control their sexual desires or were too stupid to use birth control.... The prevailing attitude was that one or two children were enough for any mother and that any mother who had four or more was an undisciplined and ignorant burden upon the country. 74

Certainly, it was an internal but pervasive ideology of nativism that partly shaped these extrajudicial mechanisms of population control. The immense ramifications of nativist practices at the USC-LA Women’s Hospital are undeniable. Leading up to Madrigal, the number of hysterectomies increased by 742% and tubal ligations by 470%.75 Research uncovered sterilizations of over 140 Latinx women in the USC-LA Women’s Hospital alone.76 Madrigal heard the testimony of ten plaintiffs, all of whom accused Dr. Quilligan of performing involuntary sterilizations at the time of child labor.

Jessica Enoch, Survival Stories: Feminist Historiographic Approaches to Chicana Rhetorics of Sterilization Abuse, 35 RHETORIC SOCIETY QUARTERLY 5, 8 (2005). 71 See Espino, supra note 6, at 123. To demonstrate this evasion of eugenics, “the notion that poverty was transmitted from one generation to the next” could no longer be based on the notion of a “hereditary defect” but, rather, of a circulation of “attitudes, beliefs and customs.” 72 Critchlow, supra note 69, at 23. 73 Stern, supra note 27, at 1135. 74 Gutiérrez & Fuentes, supra note 48, at 92. 75 Enoch, supra note 70, at 10. 76 Stern, supra note 27, at 1134. 70

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A. Blatant Disregard for Consent Unlike sterilizations in mental institutions and in Puerto Rican hospitals, which operated under a cloak of legitimacy in the law, the sterilizations of Mexican American women in the USC-LA Women’s Hospital were all entirely extrajudicial. Furthermore, these operations were arguably nonconsensual, although presiding Judge Curtis ultimately favored Dr. Quilligan, the defendant. Despite this, the details of the ten women’s stories in Madrigal are evidentiary of an absence of informed, voluntary consent. Similar to the experiences of Puerto Rican women, failures in consent can be identified under each section of the established consent criteria. Firstly, only seven of the ten women actually signed consent forms.77 Certainly then, it is likely that the remaining three victims neither acknowledged nor consented to sterilization as outlined by Section 1. It should not, however, be assumed that those who did sign forms did so under compliance with the criteria for true, informed consent. Similar to postpartum sterilizations in Puerto Rico under Section 4, the “physical and mental” pressures placed upon these women during labor exemplify their vulnerability. Alarming still is that consent, in many cases, was based upon explicitly false information and should therefore be negated. For one woman, Rivera, the doctor assured her that the operation was not permanent and that her “tubes could be untied at a later time.”78 She was not the only one who was told this lie.79 Allegations of verbal threats80 and blatant misrepresentation of sterilization laws81 also litter this lawsuit, again undermining the credibility of any consent given. The assertion of Section 5 under the consent criteria, which specifies a patient’s understanding of the procedure, is also relevant to Madrigal, or other instances, for that matter, in which the patient’s native language is not English. The English-speaking doctors took advantage of their imbalanced “linguistic power”82 over Hispanic patients by providing explanations and consent forms only in English. This particular facet of coercion during

Enoch, supra note 70, at 10. Id. 79 Id. at 6. 80 Id. at 10. 81 Id. at 11. 82 Id. at 15. 77 78

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consent is later reflected in the allegations against ICE. In summary, there are not only signs of uninformed consent under the criteria, but clear illustrations of how “consensual” sterilization practices can target Latinx women who are not native English speakers. B. The Ruling Versus the Aftermath Despite the undeniable illegitimacy of these consensual procedures, Judge Jesse Curtis found no fault on the part of the physicians responsible and was primarily critical of the Latinx women who filed suit. In his decision, he accused the victims of sensationalizing the allegations almost to the point of conspiracy and of falsifying a narrative of the hospital as having a “sinister, invidious, social purpose.”83 His frustration with the petitioners for bringing the issue to court echoes judgments from the very first rulings on consensual sterilizations; notably, that of Beatty v. Cullingworth (1896), in which the jury “expressed further disapproval of Miss. Beatty’s ‘harassment’ of Dr. Cullingworth” – this harassment being the court case itself.84 Both point to support for an outdated and paternalistic understanding of consent requirements in which the opinion and “good faith” of the doctor are prioritized. In Madrigal v. Quilligan, Judge Curtis also viewed the existence of a language barrier to be an inevitable “misunderstanding.”85 To him, in fact, the burden and “any fault” is on the part of the patient for not alleviating linguistic and cultural discrepancies. Keep in mind, of course, that this responsibility of Hispanic patients would be in addition to the physical burden imposed upon them during labor. This is the only such case involving involuntary sterilizations of Latinx women to reach federal court, and the Ninth Circuit Court of Appeals affirmed the decision. It should be recognized, however, that the case of Madrigal was not without some success. Because this case had shown the doctors to have blatantly disregarded the procedures for informed consent, several requirements were reinstated in California. For example, the standard seventy-two-hour waiting period was restored,86 ensuring that no women

Id. at 14. Gwen Seabourne, The Role of the Tort Battery in Medical Law, 24 ANGLO-AMERICAN LAW REVIEW 265, 281 (1995). 85 Enoch, supra note 70, at 15. 86 Stern, supra note 27, at 1135. 83 84

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could be sterilized during the stresses of child labor and without proper time for reflection. Equally important was the stipulation that consent forms be available in Spanish87 to guarantee that the criteria for patient comprehension be adequately established before the operation. The necessity of such precautions was emphasized again the following year at a conference for the Committee to End Sterilization Abuse. In response, the federal Department of Health, Education, and Welfare outlined criteria for informed consent which would apply to all sterilizations conducted with federal funding.88 This is a landmark achievement that should not be understated. However, it cannot be considered the end goal of federal protections for informed sterilizations. As previously noted, these regulations can only account for practices conducted with federal funding. In fact, a patient using private health insurance would be able to seek sterilization “without any prior preparation.”89 Thus, precedent on informed consent is often determined at the state level in legislation or in courts. And again, only twenty-six states currently outline specific guidelines and conditions for violations of the consensual sterilization procedures.90 Moreover, there is cause for criticism of the accessibility of these federally mandated consent forms. In an attempt to meet the criteria for informed consent, H.E.W. developed the MedicaidTitle XIX form.91 However, the technical language it employs has resulted in measurable discrepancies. In fact, a common misunderstanding is in regard to the permanence of the sterilization procedure,92 which was of concern even before these federal regulations. To illustrate this, a trial provided 200 women with two versions of the consent form, one regular and one “modified” to be at a sixth grade reading level.93 While eighty-one percent who were given the modified version knew that the sterilization would be permanent, only sixtyfive percent who had received the actual Title XIX form indicated the same.94 Consequently, there is the potential for a significant amount of sterilization 87

Id. Sonya Berrero et al., Federally Funded Sterilization: Time to Rethink Policy?, 102 AMERICAN JOURNAL OF PUBLIC HEALTH 1822, 1822 (2012). 89 Susan P. Raine, Federal Sterilization Policy: Unintended Consequences, AMERICAN MEDICAL ASSOCIATION JOURNAL OF ETHICS 152, 155 (2012). 90 Paterick et al., supra note 9, at 314. 91 Berrero, supra note 88, at 104. 92 Id. 93 Id. 94 Id. 88

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cases under this federal criteria to still lack truly informed consent. This indicates that a uniform, federal statute on informed consent is necessary to ameliorate the continued confusion and imbalances of patient protections. V. STERILIZATIONS ON THE BORDER The allegations of women detained by I.C.E. are further proof that the state and federal protections currently in place are insufficient. The news of involuntary sterilizations being performed on women in I.C.E. facilities first broke on September 14th, 2020, as part of a much larger critique of the inadequate medical treatment available.95 While many details have yet to be understood,96 it is known that at least seventeen women in the Irwin County Detention Center of Georgia have alleged operations “with the clear intention of sterilization.”97 These allegations demonstrate that many facets of the consent criteria were purposefully and systematically disregarded. For example, in violation of Sections 1 and 2, one woman was informed that a cyst on her left ovary required removal, and yet, the right ovary was removed first and “she wound up with a total hysterectomy” despite her wishes to continue bearing children.98 Evidently, medical justifications like these were presented to mislead immigrants as to any alternative options, as required under Section 3 of the consent criteria, were not discussed. Undoubtedly,

See Project South, Letter Re: Lack of Medical Care, Unsafe Work Practices, and Absence of Adequate Protection Against COVID-19 for Detained Immigrants and Employees Alike at the Irwin County Detention Center, INSTITUTE FOR THE ELIMINATION OF POVERTY AND GENOCIDE 19 (Sept. 14, 2020), https://projectsouth.org/wpcontent/uploads/2020/09/OIG-ICDC-Complaint-1.pdf. 96 See also Matthew Choi, House Dems Subpoena ICE Detention Facility Over Allegations of Medical Abuse, POLITICO (Nov. 25, 2020), www.politico.com/news/2020/11/25/icedetention-facility-subpoena-440681. It is important to note that response at the federal level is still ongoing because the company in control of the Irwin County Detention Center “refused to hand over documents related to allegations of medical abuse.” The House of Representatives has since subpoenaed the private facility but there is no clear indication of compliance. So, given that the exact circumstances of these forced sterilizations remain unknown, it is premature to propose a more detailed outline of legislation which would ensure the safety of detained women in I.C.E. centers. 97 Nicole Narea, The Outcry over ICE and Hysterectomies, Explained, VOX (Sept. 18, 2020), www.vox.com/policy-and-politics/2020/9/15/21437805/whistleblowerhysterectomies-nurse-irwin-ice. 98 Project South, supra note 95, at 19. 95

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consent would not have been obtained had the proper precautions been taken. Similar to Madrigal v. Quilligan, physicians and nurses involved ignored standard procedures in translation, presenting another example of a language barrier and thus negating full consent to treatment.99 Thus, a guarantee at the federal level which protects the informed consent criteria, and ends all nonconsensual sterilizations under this formula, is essential to protecting Latinx women in the United States, regardless of immigration status. VI. CONCLUSION Certainly, this persistent victimization of Latinx women necessitates, firstly, the recognition of nativism’s influence on public opinion, practices, and legislation throughout history. Yet, this process of acknowledgment remains largely underdeveloped. Although sterilization of the “feebleminded” has been removed from almost every state’s law, the precedent set at the federal level by Buck v. Bell has not been overturned. Similarly, although the Department of Health, Education, and Welfare responded to Madrigal v. Quilligan, among other various studies of forced sterilization against women of color, the subsequent regulations remain limited in scope and, therefore, effectiveness. Further, by not reversing the decision in Madrigal, the federal courts are essentially endorsing the offensive and nativist language employed by Judge Curtis. And it bears repeating that no repercussions for the government’s propagandizing of permanent sterilization as birth control have occurred in Puerto Rico. The focus of this Article on the sterilization of Latinx women is not intended to minimize or brush aside the coercive practices which harmed tens of thousands more people outside of this demographic. Moreover, this Article is not to suggest that sterilization is entirely uninformed and involuntary, as for many, sterilization is a desired, beneficial form of birth control. Rather, this Article intends to identify a particular shared history of Latinx women to illustrate that nonconsensual sterilizations are an instrument of nativism and oppression that continues to be exercised to this day. Action on the federal level should by no means be regarded as purely symbolic. As illustrated by recent allegations in Georgia I.C.E. facilities, the absence of federal legislation prohibiting involuntary sterilization continues

Id. at 20.

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to put Latinx women’s bodily safety in significant danger. Therefore, this Article urges the Biden Administration to employ its broad discretionary authority under the Immigration and Nationality Act, as determined in Trump v. Hawaii (2018),100 to sign an executive order barring all involuntary sterilizations within facilities used by Immigration and Customs Enforcement. In the long term, Congress would need to codify this executive order into law to ensure permanent protections of these Latinx immigrants at the border. Finally, this Article argues that federal legislation which establishes protections under the informed consent criteria, and thus shields a greater number of people, including Latinx women, from sterilization both in I.C.E. detention centers and in hospitals around the country, is crucial to reckoning with this country’s long history of forced sterilization. *** This Article was edited by Nicholas Suit, Kevin James, and April Gore.

See Trump v. Hawaii, 138 S. Ct. 923 (2018). In this case, Chief Justice John Roberts wrote for the majority, asserting that the matter of foreign policy and relations “is a ‘fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.’”

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NOTE ARE LIVE LINEUPS OBSOLETE? WHY HENDERSON SHOULD REPLACE CURRENT SUPREME COURT PRECEDENT FOR IDENTIFICATION PROCEDURES Margaret Franzreb*

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Utilizing live lineups in criminal identification processes has become more disputed throughout the United States due to the increased scrutiny the legal admission of this procedure has received within the past decade. This Note examines the New Jersey Supreme Court case State v. Henderson (2011) in which the court unanimously decided to reinforce live lineup procedures, igniting controversial debate within the legal sphere regarding possible prejudices involved when a suspect participates in a lineup. The New Jersey Supreme Court prioritized the issue of misidentification, while recognizing it as the greatest cause of wrongful convictions, by redefining the admissibility of identification procedures to include the idea that most misidentifications occur from the fact that human memory is malleable. The extent to which live lineups are admissible in court depends on the suggestiveness of the police’s actions; consequently, the possibility of a completely neutral procedure to conduct live lineups must be evaluated. To comprehend the decision, it is imperative to analyze the Manson Test, a standard developed to determine the admissibility of criminal identification processes established in Manson v. Brathwaite (1977). The recent Supreme Court decision in Perry v. New Hampshire (2012) demonstrates the inadequate response to the injustices occurring from misidentification. By analyzing the justification for the New Jersey Supreme Court decision, this Note argues that the current limitations on the admissibility of live lineups do not suffice in eradicating the existence of prejudice in the procedure, and advocates for the Supreme Court to overrule precedent by applying the exclusionary rule to protect defendants’ constitutional right to due process. * B.A. Candidate for Economics and Philosophy, Fordham College at Lincoln Center, Class of 2022. I am grateful for the opportunity to contribute to the Fordham Undergraduate Law Review as a Staff Writer. There is immense honor in creating a journal for undergraduates to express legal ideas with their peers, and for that I thank the Editorial Board. I would also like to thank Professor Flavin, who inspired my interest in criminal procedure. Finally, I must thank my friends and family for their unconditional support; I would not be where I am without them. 101

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I. INTRODUCTION ..........................................................................................22 II. SUPREME COURT PRECEDENT FOR THE MANSON TEST ............................23 A. The Exclusionary Rule......................................................................24 B. Stovall v. Denno ...............................................................................24 C. Neil v. Biggers..................................................................................25 III. THE MANSON TEST .................................................................................26 IV. REWRITING IDENTIFICATION PROCEDURES: STATE V. HENDERSON ..........27 A. Variables...........................................................................................28 B. Revised Framework ..........................................................................30 IV. PERRY V. NEW HAMPSHIRE .......................................................................30 VI. IMPLEMENTING HENDERSON AND MODERN RESEARCH ON IDENTIFICATION PROCEDURES ...............................................................32 VII. CONCLUSION .........................................................................................33 I. INTRODUCTION Implicit bias plagues the criminal justice system, fundamentally acting as an element for the issue of misidentification for eyewitnesses. Misidentification is the leading cause of wrongful convictions in the United States.102 The U.S. Supreme Court established the first test to regulate the fairness and reliability of eyewitness identification evidence in Manson v. Brathwaite (1977).103 The 1977 ruling for Brathwaite outlined five reliability factors that all judges must consider when examining the admissibility identification evidence at trial.104 Nearly thirty-four years later in 2011, the Supreme Court of New Jersey addressed the issue of implicit bias in State v. Henderson (2011), recognizing the plethora of scientific research that had occurred after Brathwaite that transformed the understanding of memory and the reliability of identification procedures. This Note will examine the development of the admissibility processes for lineup identification procedures leading up to Brathwaite, the continued usage of the Manson Test in the recent Supreme Court case Perry v. New Hampshire (2012), and the transformation the Supreme Court of New Jersey commenced in the ruling

Innocence Staff, How Eyewitness Misidentification Can Send Innocent People to Prison, THE INNOCENCE PROJECT (Apr. 15, 2020), https://innocenceproject.org/howeyewitness-misidentification-can-send-innocent-people-to-prison/. 103 Manson v. Brathwaite, 432 U.S. 98, 113-114 (1977). 104 Id. 102

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for State v. Henderson, ultimately advocating for criminal law reform that excludes the admissibility of live lineups completely on the basis of updated research and racial prejudices. This argument is supported by the number of subsequent DNA exonerations since the first occurred in 1989, now totaling 375 in 2020 and largely attributable to eyewitness misidentification.105 Sixty percent of these DNA exonerations involve African American defendants, and sixty-nine percent were people of color, demonstrating a disproportionate effect on people of color in the United States.106 The U.S. Supreme Court should recognize the recent state supreme court alterations to the Manson Test and agree to hear a case on criminal identification procedures to establish a new uniform framework for the admissibility of identification procedures. Section II examines the precedent of Manson v. Brathwaite to emphasize the delay in addressing the issue of prejudicial lineups. Section III analyzes the Manson Test to illustrate its shortcomings, and Section IV highlights how the New Jersey Supreme Court aimed to remedy these shortcomings. Section V exhibits the dependency on the Manson test, which the Supreme Court still embraces. Finally, this Note argues that the U.S. Supreme Court should embrace the new framework presented in State v. Henderson and further limit the use of live lineups in criminal identification processes by applying the exclusionary rule in order to recognize the prejudicial nature of the admission of unreliable eyewitness identification evidence and ensure defendants receive their right to due process. II. SUPREME COURT PRECEDENT FOR THE MANSON TEST The late 1960s and early 1970s were dominated by criminal law reform, with the U.S. Supreme Court writing several opinions on the limitations of the Due Process Clause as it applies to the admissibility of eyewitness identification.107 The landmark decision of Manson v. Brathwaite was the result of a series of court cases.

DNA Exonerations in the United States, THE INNOCENCE PROJECT (2020), https://innocenceproject.org/dna-exonerations-in-the-united-states/ (The Innocence Project found that sixty-nine percent of DNA exonerations involved eyewitness misidentification). 106 Id. 107 E.g., Neil v. Biggers, 409 U.S. 188 (1972); e.g., Simmons v. U.S., 390 U.S 377 (1968); e.g., Stovall v. Denno, 388 U.S. 293 (1967). 105

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A. The Exclusionary Rule From 1953 to 1969, Chief Justice Earl Warren presided over the Supreme Court.108 The Warren Court is famously known to have been the pioneer of the “criminal procedure revolution,” designating protections to the unpopular and powerless criminal.109 Through several rulings, the Warren Court expanded the Bill of Rights to apply outside the courtroom, influencing the daily life of police officers and their procedures.110 The exclusionary rule, as applied to all federal and state cases, states that if evidence is gathered in violation of the U.S. Constitution, that evidence must be excluded at trial.111 The identification procedures police utilized in the conviction process were soon scrutinized in accordance with the exclusionary rule due to the amount of weight placed on the eyewitness testimony by the jury.112 B. Stovall v. Denno Stovall v. Denno (1967) was the first case the Warren Court addressed regarding a Fourteenth Amendment Due Process Clause violation by a police officer conducting an impermissibly suggestive eyewitness identification procedure.113 The case involved the identification procedure of Theodore Stovall, who was brought to the hospital room of the victim prior to obtaining counsel. Mr. Stovall was the only African American man in the room and was handcuffed to a police officer during the procedure. The victim identified Mr. Stovall as the attacker she encountered, and the identification was used as evidence in the trial. The first issue presented to the Court was whether previous criminal procedure rulings could be applied to this case retroactively, specifically regarding the exclusion of identification evidence tainted by exhibiting the suspect to an identifying witness before trial without 108 Rutha Yacona, Manson v. Brathwaite: The Supreme Court's Misunderstanding of Eyewitness Identification, 39 J. MARSHALL L. REV. 539, 543 (2006). 109 Corinna Barrett Lain, Countermajoritarian Hero or Zero? Rethinking the Warren Court's Role in the Criminal Procedure Revolution, 152 U. PA. L. REV. 1361, 1364 (2004). 110 See Brown v. Bd. of Educ., 347 U.S. 483 (1954) (racial segregation); see Gideon v. Wainwright, 372 U.S. 335 (1963) (right to counsel); see Miranda v. Ariz., 384 U.S. 436 (1966) (criminal procedure). 111 Yacona, supra note 108, at 544. 112 Id. 113 Stovall, 388 U.S. at 295.

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an attorney present.114 The second issue was whether Mr. Stovall was deprived of his Fourteenth Amendment right to due process by the identification process.115 The Court ruled the previous decisions could not be applied retroactively and that the details of the particular case did not violate his right to due process.116 The Court’s decision was reliant on the immediacy of the situation, as the duration of the victim’s survival was unknown.117 Although the Court did not rule in Mr. Stovall’s favor, the Court did note that an identification procedure can be “so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law… The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.”118 C. Neil v. Biggers In 1972 (after the Warren Court), the Burger Court established a precedent for the Manson decision with the case Neil v. Biggers. In this case, the Court deemed an identification procedure that occurred seven months after the date of the crime admissible into evidence.119 The Court concluded there are five factors to use in determining whether a witness identification is sufficiently reliable to be admissible regardless of a suggestive identification procedure. The factors included: (1) the witness’ opportunity to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation.120 The aforementioned factors were cited from prior rulings121 and did not include any scientific research. Similar to Stovall, the Court ruled in favor of Neil, justifying the

See United States v. Wade, 388 U.S. 218 (1967); Gilbert v. Cal., 388 U.S. 263 (1967). Stovall, 288 U.S. at 294. 116 Id. at 297. 117 Id. at 302. 118 Id. 119 Yacona, supra note 108, at 550. 120 Neil, 409 U.S. at 198-200. 121 See Coleman v. Alabama, 299 U.S 1 (1970); Foster v. Cal., 294 U.S 4040 (1969); Simmons, 290 U.S.; Stovall, 388 U.S. 114 115

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ruling by analyzing the “totality of the circumstances” and finding there was “no substantial likelihood of misidentification.”122 III. THE MANSON TEST The Supreme Court developed a standard two-prong test for the admissibility of identification procedures in Manson v. Brathwaite (1977), which dealt with the two aforementioned cases and clarified the standard.123 The test was to be administered at all pre-trial eyewitness identification suppression hearings.124 The first prong of the test involves the suggestive nature of the procedure. Justice Harry Blackmun wrote for the majority stating, “[t]he police will guard against unnecessarily suggestive procedures under the totality rule, as well as the per se one, for fear that their actions will lead to the exclusion of identifications as unreliable.”125 Thus, if the identification procedure is not deemed suggestive, it can be admitted into evidence on the basis that there is no due process challenge. In contrast, if the procedure is deemed suggestive, the Court examines the reliability of the identification despite the suggestiveness with the second prong of the test. The second prong of the test involves the reliability of the identification procedure. The Court outlined five factors, taken from Neil v. Biggers, to determine reliability: (1) the witness’ opportunity to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’s prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation.126 The suggestiveness of the identification procedure has the ability to result in prejudiced decisions that fundamentally violate the Fourteenth Amendment’s Due Process Clause. Furthermore, four of the five factors from Biggers are reliant on subjective elements, ultimately creating unnecessary additional opportunity for prejudice in the courtroom. Several factors and

Neil, 409 U.S. at 199-201. Manson, 432 U.S. at 114-117. 124 Yacona, supra note 108, at 546. 125 Manson, 432 U.S. at 111. 126 Id. at 114-16. 122 123

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determinants for the admission of criminal identification procedures have since faced critique,127 particularly in the Supreme Court of New Jersey. IV. REWRITING IDENTIFICATION PROCEDURES: STATE V. HENDERSON In 2011, thirty-four years after Manson, the Supreme Court of New Jersey decided State v. Henderson. The case centered around the identification procedure that followed the murder of Rodney Harper. Two men entered Mr. Harper’s apartment on January 1, 2003, while Mr. Harper and James Womble were present. Mr. Womble knew one of the men, but the other was a stranger. The police conducted a photo array to identify the man; however, during the identification procedure, Mr. Womble could not confidently identify the stranger in the array and was encouraged by two investigating officers to “do what you have to do and we’ll be out of here.”128 It was then that Mr. Womble identified Larry Henderson as the stranger. Mr. Womble continued to testify to the fact that he felt as though one of the detectives was nudging him to choose the defendant’s photo and he felt pressured to make a choice.129 The lower court did not find the officers’ behavior impermissibly suggestive and ruled that the evidence of the identification was thus admissible.130 The lower court utilized the Manson Test to determine the admissibility. The lower court found that there was “nothing in this case that was improper, and certainly nothing that was so suggestive as to result in a substantial likelihood of misidentification at all,” while also noting that Womble did not demonstrate any doubt in his identification.131 During the trial, Womble testified, stating that he was intoxicated on the night of the crime, that the scene was dark, and that he failed to recognize anyone in the photo array initially; nonetheless, Womble testified to being sure of his identification.132 Based primarily on this identification and the detective’s testimony, Henderson was convicted on charges of reckless manslaughter, aggravated assault, and weapons charges.

See Gary L. Wells, Eyewitness Identification, 2 PSYCHOLOGY PUBLICATIONS 259 (2018). 128 State v. Henderson, 208 N.J. 208, 224 (N.J. 2011). 129 Id. 130 Id. 131 Id. at 225. 132 Id. 127

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After hearing arguments regarding the inadequacies of the Manson Test, the Supreme Court of New Jersey appointed a Special Master to evaluate scientific evidence: We are convinced from the scientific evidence in the record that memory is malleable, and that an array of variables can affect and dilute memory and lead to misidentifications. Those factors include system variables like lineup procedures, which are within the control of the criminal justice system, and estimator variables like lighting conditions or the presence of a weapon, over which the legal system has no control. To its credit, the Attorney General’s Office incorporated scientific research on system variables into the guidelines it issued in 2001 to improve eyewitness identification procedures. We now review both sets of variables in detail to evaluate the current Manson/Madison test.133

Given this testimony, the court established a new precedent for these identification procedure issues, acknowledging variables that the Burger Court failed to address in Manson. Applying appropriate modern scientific knowledge, the New Jersey Supreme Court recognized the misunderstanding of memory the Burger Court utilized in the Manson Test. The New Jersey Supreme Court prioritized the issue of misidentification and the fact that it is the single greatest cause of wrongful convictions, by redefining the admissibility of identification procedures to include the idea that most misidentifications occur from the fact that human memory is malleable.134 The court cited over 200 scientific studies that were analyzed in the record to support the conclusion that misidentification not only occurs, but also causes immense, and often irreparable consequences for those who are misidentified. A. Variables The Supreme Court of New Jersey examined several scientific studies and found that two types of variables contribute to the reality of misidentification: system variables and estimator variables.135 System variables are factors such as the lineup identification processes, which are controlled by the criminal justice system, while estimator variables are

Id. at 218. Id. 135 Id. 133 134

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factors related to the witness, the perpetrator, or the event itself (for example, distance, lighting, or stress). The court listed eight system variables, which were supported by the scientific evidence submitted to the record. The outlined system variables included blind administration, pre-identification instructions, lineup construction, avoiding feedback and recording confidence, multiple viewings, simultaneous versus sequential lineups, composites, and showups.136 Accordingly, the court determined the following estimator variables were relevant in the criminal identification procedure: stress, weapon focus, duration, distance and lighting, witness characteristics, characteristics of the perpetrator, memory decay, racial bias, private actors, and speed of identification.137 The analysis of the variables in accord with the Special Master’s social scientific records compelled the court to conclude that the Manson Test needs revision, finding that the test does not “provide a sufficient measure for reliability, it does not deter, and it overstates the jury’s innate ability to evaluate eyewitness testimony.”138 The two prongs of the Manson Test require the defendant to illustrate that the police procedures were “impermissibly suggestive” prior to examining the estimator factors; thus, the estimator variables are not considered unless there is conclusive evidence of impermissible suggestive police conduct.139 In State v. Henderson, the estimator variables were not examined in the pretrial hearing due to the lower court finding the procedure was not “impermissibly suggestive,” fundamentally acting as an obstacle for justice.140 Furthermore, if the lower court does find the police conduct “impermissibly suggestive,” three of the five Manson reliability factors are reliant on self-reporting by the eyewitness and research has exhibited these factors can be altered by the suggestive procedure itself.141 The court additionally noted the Manson Test does not adequately deter suggestive police practices. A suggestive procedure can aid a witness in gaining more confidence in their identification, ultimately allowing the identification to be admissible.

Id. at 249-61. Id. at 261-71. 138 Id. at 285. 139 Id. at 286. 140 Id. 141 Id. 136 137

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B. Revised Framework In State v. Henderson, the New Jersey Supreme Court fundamentally reorganized the criminal identification procedure admissibility limitations. The court dedicated a significant portion of the opinion to detailing the revised legal framework of the admissibility for identification procedures. The two main changes of the revised framework are that both relevant system and estimator variables are to be analyzed at the pretrial hearings, and a recommendation for the courts to use enhanced jury charges.142 The new framework has dual goals: “to guarantee fair trials to defendants, who must have the tools necessary to defend themselves, and to protect the State’s interest in presenting critical evidence at trial.”143 The revised standards for the admissibility of identification processes are to be flexible, as the court deems it not “frozen in time.”144 This approach displays a significant appreciation for the ever-evolving scientific research that courts are faced with. The court has invited the trial courts to review new and “generally accepted” scientific research.145 IV. PERRY V. NEW HAMPSHIRE Although the Supreme Court of New Jersey found the preexisting legal standard inadequate and set out to reform it, the U.S. Supreme Court failed to acknowledge the same shortcomings. In 2012, six months after State v. Henderson, the Supreme Court ruled on the case Perry v. New Hampshire. The case involved a report that an African American male was trying to break into cars parked in the lot of an apartment complex.146 When a resident requested police assistance, the police arrived to find only Perry in the parking lot.147 One officer went to the apartment from where the theft was reported and began an interrogation, while the other officer remained with Perry in the parking lot.148 One of the eyewitnesses reported that they saw an

Id. at 288. Id. 144 Id. 145 Id. at 292. 146 Perry v. New Hampshire, 565 U.S. 228, 233 (2012). 147 Id. 148 Id. 142 143

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African American man in the parking lot, and when asked for more identification, the eyewitness pointed outside her window and said the man she saw was standing next to the police officer.149 Perry was the only African American man in the parking lot with the police officer, and his arrest followed immediately after this identification.150 About a month later, the same eyewitness was asked to identify the man she saw in a photographic array, but she could not identify Perry.151 The Court reached an 8-1 decision in favor of New Hampshire.152 The Court began the decision by acknowledging that the regulation of evidence is typically done by the states; however, due process claims for identification procedures have been addressed by the Supreme Court.153 The Supreme Court emphasized the role of police conduct in the precedent, 154 citing it as the primary reason for the judgment. The Court asserted, “[w]e have not extended pretrial screening for reliability to cases in which the suggestive circumstances were not arranged by law enforcement officers.”155 On appeal, Perry challenged the admissibility of the out-of-court identification, claiming, “[s]uggestive circumstances alone, Perry argued, suffice to trigger the court’s duty to evaluate the reliability of the resulting identification before allowing presentation of the evidence to the jury.”156 The Court noted the constitutional protections for defendants within the Fifth and Sixth Amendments, in addition to relying on the jury to decide the reliability of the identification procedure.157 Further, the Court recognized that eyewitness misidentifications are the leading cause of wrongful convictions and cited research that indicated as many as one in three eyewitness identifications are inaccurate;158 nonetheless, the Court determined the aforementioned constitutional rights and the fundamental role of the jury were sufficient in preventing misidentification.159

Id. at 234. Id. 151 Id. 152 Id. at 230. 153 Id. at 232. 154 See Simmons, 390 U.S.; Stovall, 388 U.S.; Foster, 394 U.S. 155 Perry, 565 U.S. at 232. 156 Id. at 236. 157 Id. at 237. 158 Id. at 245. 159 Id. 149 150

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In Perry, the Court cited the Manson precedent repeatedly,160 ultimately relying on a thirty-five-year-old precedent that state courts have found inadequate. The Court addressed the rejection of the exclusionary rule in Manson, agreeing that a “rule requiring automatic exclusion… would ‘g[o] too far,’ for it would ‘kee[p] evidence from the jury that is reliable and relevant,’ and ‘may result, on occasion, in the guilty going free.’”161 However, the Court acknowledged the troubling issue of common misidentifications and their occurrence under the current criminal justice system, and did not extend constitutional protections in order to prevent these injustices. VI. IMPLEMENTING HENDERSON AND MODERN RESEARCH ON IDENTIFICATION PROCEDURES Following State v. Henderson, the International Association of Chiefs of Police released a recommendation to update policies for lineups in 2013.162 There have been other state supreme court cases163 making similar decisions as the New Jersey Supreme Court to ensure criminal defendants’ right to due process. However, the New York Court of Appeals recently addressed the issue of unduly suggestive lineups in People v. Perkins (2016). People v. Perkins involved a defendant who participated in four lineups and had a distinctive hairstyle than some or all of the fillers in the lineup.164 The New York Court of Appeals ruled in favor for defendant to suppress the four lineups, reversing the lower court’s decision, on the basis that “a lineup’s suggestiveness should not turn solely on whether a defendant’s distinctive feature figured prominently in a witness’s prior description. Rather, a witness’s prior description is but one factor a court should consider in

Id. at 235-241. Id. at 239. 162 U.S. Department of Justice et al., National Summit on Wrongful Convictions: Building a Systemic Approach to Prevent Wrongful Convictions, INTERNATIONAL ASSOCIATION OF CHIEFS OF POLICE (2013), https://bja.ojp.gov/sites/g/files/xyckuh186/files/media/document/iacpwrongful_convictions_summit_report.pdf. 163 See State v. Lawson, 352 Ore. 724 (Or. 2012). 164 People v. Perkins, 28 N.Y.3d 432, 436 (N.Y. 2016). 160 161

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determining whether the lineup is one that ‘create[s] a substantial likelihood that the defendant would be singled out for identification.’”165 Despite efforts from the New Jersey Supreme Court and the International Association of Chiefs of Police to establish reforms, the New York Court of Appeals found the issue in their courtroom. This suggests that the problem with live lineups is inherent. The complexities of this issue require uniform regulations, regarding the aforementioned effects of both system and estimator variables and their connection with misidentification.166 Moreover, the increased usage of video surveillance for evidence in criminal trials and identification procedures eliminates the necessity of live lineups. The continual reform on lineups and identification procedures, as specifically addressed in State v. Henderson and the recommendation from the International Association of Chiefs of Police, demonstrates potential problems that lineups can embody. The state of scientific research on identification procedures and the superiority of certain types is unresolved,167 posing a fundamental challenge to the admissibility of live lineups in the United States criminal justice system. VII. CONCLUSION The New Jersey Supreme Court furthered the cause to end prejudicial conduct and implicit bias in criminal identification procedures, which encouraged several states to follow and enact the proposed guidelines. However, many courts still utilize the Manson Test, including the U.S. Supreme Court, which has proven to be inadequate. The increasing and undeniable presence of scientific studies that demonstrate the unreliability of eyewitness identifications illustrates the need for the Supreme Court to hear case that involves the suggestiveness of an identification procedure to establish new precedent that overrules Manson v. Brathwaite and Perry v. New Hampshire. People v. Perkins raised the continuing controversy of suggestive identification procedures in the courtroom, even after guidelines have been established. The Supreme Court should apply the exclusionary rule to suggestive and unreliable identification procedures, primarily live lineups, Id. at 437. National Research Council et al., Identifying the Culprit: Assessing Eyewitness Identification, 106 (2015). 167 Id. 165 166

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to protect a defendant’s constitutional right to due process. The Supreme Court’s dependence on the current standards from Manson in the Perry v. New Hampshire decision exhibit the failure to protect defendants from misidentification, which is demonstrated by the number of DNA exonerations in conjunction with the updated guidelines presented in State v. Henderson. A Supreme Court ruling would reorient the states on the admissibility of identification procedures and how to conduct them, ultimately diminishing the possibility of implicit bias in the procedures. *** This Note was edited by April Gore and Kevin James.

NOTE A SCALPEL RATHER THAN A BULLDOZER: SEVERABILITY AND THE AFFORDABLE CARE ACT Caroline Morris*

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The issues of legislative intent and statutory interpretation are at the heart of many landmark cases in U.S. Supreme Court history and often play a vital role in determining the constitutionality of debated provisions of legislation. Legislative intent and statutory interpretation also play a critical role in determining whether unconstitutional provisions are severable from laws’ remaining provisions. This Note examines the doctrine of severability and severability jurisprudence in the Supreme Court as it relates to federal legislation both with and without severability clauses. Specifically, this Note contextualizes severability in terms of one major piece of federal legislation that has affected nearly every American since its enactment: The Patient Protection and Affordable Care Act. This Note will contextualize California v. Texas (2020), a Supreme Court case that challenged the constitutionality and severability of the individual mandate and explore the ways severability judgments might evolve with the Court’s decision in this case. This Note will begin with a discussion of the Affordable Care Act, including its enactment, one of its major constitutional challenges, and its functional changes due to the Tax Cuts and Jobs Act of 2017. This discussion will be followed by a review of the merits of California. This Note will then analyze the severability doctrine and apply the doctrine to the individual mandate of the Affordable Care Act. Ultimately, this Note argues that the applicability of the presumption of severability to the individual mandate fits squarely with the Court’s severability precedent.

* B.A. Candidate for Political Science and International Studies, Fordham College at Lincoln Center, Class of 2022. It has been an honor to be a part of the Fordham Undergraduate Law Review as the Executive Articles Editor. I would like to give particular thanks to my Judicial Politics and Constitutional Law Professor Robert Hume, who provided invaluable feedback on this Note and who has inspired me to follow my passion in the law. Thank you also to the FULR Editorial Board, Father Brendan Horan, and to my friends and family who have provided endless support. 168

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I. INTRODUCTION ..........................................................................................36 II. THE PATIENT PROTECTION AND AFFORDABLE CARE ACT ........................37 A. Section 5000A ...................................................................................38 B. National Federation of Independent Business v. Sebelius ...............39 C. The Tax Cuts and Jobs Act of 2017 ..................................................40 D. California v. Texas Overview...........................................................40 III. THE DOCTRINE OF SEVERABILITY AND THE IMPORTANCE OF STARE DECISIS ..................................................................................................41 A. Examining Precedent Without Severability Clauses ........................42 B. The Importance of Stare Decisis ......................................................45 C. Severability, the Individual Mandate, and the ACA .........................46 IV. CONCLUSION: IMPLICATIONS OF SEVERABILITY .....................................47 I. INTRODUCTION The doctrine of severability — the principle that a court can excise an unconstitutional provision of a statute without declaring the entire statute unconstitutional — “forms a core tenet of American constitutional law.”169 In fact, the doctrine has been implicit since Marbury v. Madison (1803) when Chief Justice John Marshall concluded the U.S. Supreme Court did not have the power to order William Marbury’s judgeship commission because Section 13 of the Judiciary Act of 1789, which would have compelled the Court to issue the writ of mandamus, was unconstitutional.170 Chief Justice Marshall later stated that “if any part of the act be unconstitutional, the provisions of that part may be disregarded, while full effect will be given to such as are not repugnant to the constitution.”171 Evidently, oftentimes when the Supreme Court considers the constitutionality of federal legislation, the case hinges on one clause, one section, or one provision rather than the constitutionality of the entire statute. Two hundred and eighteen years after

Constitutional Remedies: Murphy v. National Collegiate Athletic Association, 132 HARV. L. REV. 387, 387 (2018). 170 Marbury v. Madison, 5 U.S. 137 (1803); see David H. Gans, To Save and Not Destroy: Severability, Judicial Restraint, and the Affordable Care Act, AMERICAN CONSTITUTION SOCIETY (Dec. 2019), https://www.acslaw.org/wpcontent/uploads/2019/12/Severability_Judicial-Restraint_Affordable-Care-Act.pdf. 171 Bank of Hamilton v. Lessee of Dudley, 27 U.S. 492, 526 (1829). 169

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the Supreme Court solidified the power of judicial review,172 the Supreme Court faced the question of the constitutionality of a major provision of a piece of federal legislation that has affected nearly every American since its enactment: The Patient Protection and Affordable Care Act (ACA). California v. Texas (2020) addressed, among other issues, the question of the constitutionality, not of the entire Act, but of the provision containing the individual mandate. Importantly, the case considered the individual mandate’s ability to be severed from the Act’s remaining provisions, provided that the mandate was deemed unconstitutional. The doctrine of severability was evidently crucial in determining the ability of the Affordable Care Act to stand without one of its major provisions. This Note will document a brief history of the Affordable Care Act, including its controversial and major provisions, court challenges, and functional changes due to the Tax Cuts and Jobs Act of 2017. This Note will then explain the importance of adherence to the principle of stare decisis and will ultimately argue that the presumption of severability as applied to the individual mandate fits within the Court’s severability precedent and therefore works to promote stability, predictability, and consistency in the Court’s decisions. II. THE PATIENT PROTECTION AND AFFORDABLE CARE ACT President Barack Obama, in his 2008 presidential campaign, ran on the promise to lower the cost of healthcare and to provide affordable, highquality health care for all Americans.173 When President Obama won the election, he quickly made healthcare reform his top priority.174 The reform, eventually titled the Patient Protection and Affordable Care Act, commonly known as the ACA or “Obamacare,” had three main purposes: to make health insurance affordable and available to more people, to “expand the Medicaid See William Michael Treanor, Judicial Review Before Marbury, 58 STAN. L. REV. 455 (2005); see generally Letter to Alexander Hamilton from William Bradford, 2 July 1795, NATIONAL ARCHIVES, https://founders.archives.gov/documents/Hamilton/01-18-02-0272 (“I consider the question as the greatest one that ever came before that Court,” discussing Hylton v. United States, 3 U.S. 171 (1796)). 173 Michael Nelson, Barack Obama: Campaigns and Elections, UVA MILLER CENTER, https://millercenter.org/president/obama/campaigns-and-elections. 174 Josh Blackman, Unprecedented: The Constitutional Challenge to Obamacare, 25 (2013). 172

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program to cover all adults with income below 138% of the federal poverty level,” and to support new medical care methods in an effort to lower the costs of healthcare.175 President Obama signed the bill on March 23, 2010 with twenty-two pens176 and shortly thereafter, lawsuits were filed across the country in opposition to various provisions of the Act.177 A. Section 5000A One of the ACA’s most notable, and perhaps most controversial, provisions is Section 5000A, which is the requirement to maintain a minimum essential coverage, or more commonly known as the individual mandate. Section 5000A(a) states that eligible individuals must ensure that they are covered under “minimum essential coverage.”178 Section 5000A(b) requires that, if a taxpayer who is an applicable individual fails to meet the minimum essential coverage requirement, there will be a penalty “imposed on the taxpayer” called the ‘shared responsibility payment.’179 Section 5000A(c) outlined the amount of that payment, which was the greater of either a percentage of applicable income or a yearly flat dollar amount. 180 In 2014, the penalty was the greater of either 1.0% of one’s applicable income or a $95 flat amount.181 In 2015, the penalty was the greater of either 2.0% or $325.182 From 2016 to 2018, the penalty was the greater of either 2.5% or $695.183

Affordable Care Act, HEALTHCARE.GOV, https://www.healthcare.gov/glossary/affordable-care-act/. 176 President Obama was adhering to a Washington tradition in which the president signs important pieces of legislation with multiple pens to give them as keepsakes to major proponents and supporters of the legislation. Claire Suddath, Why Did Obama Use So Many Pens to Sign the Health Care Bill?, TIME (Mar. 23, 2010), http://content.time.com/time/politics/article/0,8599,1974490,00.html. 177 Blackman, supra note 174, at 79. 178 Patient Protection and Affordable Care Act, 26 U.S.C. § 5000A(a) (2010). 179 Id. § 5000A(b). 180 Id. § 5000A(c); Ryan J. Rosso, CONG. RSCH. SERV., R44438, THE INDIVIDUAL MANDATE FOR HEALTH INSURANCE COVERAGE: IN BRIEF 3 (2020). 181 Id. 182 Id. 183 Id. 175

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B. National Federation of Independent Business v. Sebelius One of the ACA’s most notable challenges before California was National Federation of Independent Business v. Sebelius (NFIB) (2012), for which Chief Justice John Roberts wrote the majority opinion. One of the questions before the Court was whether Congress had the power under Article I, Section 8 to require most Americans to purchase health insurance.184 Notably, Chief Justice Roberts began the opinion by writing that the Court does “not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders.”185 The majority affirmed Congress’ power to require most Americans to purchase health insurance under Congress’ taxing power.186 The individual mandate was upheld essentially because the shared responsibility payment, for constitutional purposes, could be considered a tax. The Court reasoned that the shared responsibility payment was “far less than the price of insurance,” it was collected solely by the Internal Revenue Service through normal means of taxation, and it produced at least some revenue for the government.187 Chief Justice Roberts wrote that the Court had a “duty to construe a statute to save it, if fairly possible” and therefore the shared responsibility payment had to have been interpreted as a tax.188 The Court also concluded that Congress exceeded its power under the Commerce Clause because the individual mandate did not regulate existing commercial activity, but instead compelled

Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 540 (2012). The individual mandate provided exemptions for individuals who rely “solely on a religious method of healing” and for individuals whose “acceptance of medical health services would be inconsistent with religious beliefs of the individual.” Individuals not lawfully present in the United States and incarcerated individuals were also exempt. 26 U.S.C. § 5000A(d) (2010). 185 Nat’l Fed’n of Indep. Bus., 567 U.S. at 602. 186 Id. at 565. 187 Id. at 564-66. U.S. Supreme Court precedents have stated that taxes impose an “economic impediment” or generate revenue; see Sonzinsky v. United States, 300 U.S. 506, 513 (1937); see United States v. Kahriger, 345 U.S. 22 (1953) (overruled in part on other grounds by Marchetti v. United States, 390 U.S. 39 (1968)). 188 Nat’l Fed’n of Indep. Bus., 567 U.S. at 574; see also Josh Blackman, Undone: The New Constitutional Challenge to Obamacare, 23 TEX. REV. LAW & POL. 1, 11 (discussing NFIB’s saving construction). 184

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people to become active in interstate commerce.189 Significantly, the Court declined to resolve the severability question.190 The Court’s ruling on the issue of the constitutionality of the individual mandate became profoundly more complex when Congress, under President Donald J. Trump, enacted the Tax Cuts and Jobs Act of 2017, causing the Court to reconsider the constitutionality of the individual mandate and its severability in California. C. The Tax Cuts and Jobs Act of 2017 In 2016, President Trump ran a campaign that promised corporate tax cuts and a reduction of the number of individual income tax brackets. 191 He also ran on the promise to “repeal and replace Obamacare” stating: “if we don’t repeal and replace Obamacare, we will destroy American healthcare forever.”192 In 2017, Congress passed the Tax Cuts and Jobs Act, which functionally “eliminated the shared responsibility payment” starting in tax year 2019 and beyond by substituting “2.5 percent” for “Zero percent” of applicable income and by changing the $695 flat amount to zero dollars.193 Evidently, Chief Justice Robert’s saving construction—the construction deployed to construe the shared responsibility as a tax—was now under assault, since a zero-dollar penalty no longer produced revenue for the government. D. California v. Texas Overview California v. Texas came to the Supreme Court on appeal from the Fifth Circuit after the Fifth Circuit concluded that the reduction of the shared

Nat’l Fed’n of Indep. Bus., 567 U.S. at 552 (“Every day individuals do not do an infinite number of things… Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation”). 190 National Federation of Independent Business v. Sebelius, OYEZ, https://www.oyez.org/cases/2011/11-393. 191 Jill Colvin, Trump Delivered on Some Big 2016 Promises, but Others Unmet, ASSOCIATED PRESS (Aug. 23, 2020), https://apnews.com/article/c9dc524c21c14957abb8d0ac4963a42b. 192 CBS News, Full Video: Donald Trump Speech on Obamacare “Catastrophe,” YouTube (Nov. 1, 2016), https://www.youtube.com/watch?v=0kuLxPEhz_g. 193 Tax Cuts and Jobs Act of 2017, Pub. L. No. 115-97, § 11081, 131 Stat. 2054, 2092. 189

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responsibility payment to zero dollars rendered the minimum coverage provision unconstitutional and remanded the severability question to the District Court for the Northern District of Texas for further fact-finding.194 The issues presented to the Supreme Court in California arose from the ruling in NFIB and the Tax Cuts and Jobs Act, which reduced the shared responsibility payment to zero dollars. The first question raised in California was whether reducing the amount specified in Section 5000A(c) to zero dollars rendered the minimum coverage provision unconstitutional, since it no longer had some of the necessary attributes of a tax.195 The second issue presented before the Court was whether the minimum coverage provision was severable from the remaining provisions of the ACA.196 III. THE DOCTRINE OF SEVERABILITY AND THE IMPORTANCE OF STARE DECISIS The doctrine of severability “governs whether a court may first separate out or ‘sever’ the unconstitutional provisions or applications of a law, and then subtract or ‘excise’ them, so the constitutional remainder can be enforced going forward.”197 Justice Amy Coney Barrett succinctly defined the doctrine in her confirmation hearings, stating: [T]he doctrine of severability is a doctrine essentially of statutory interpretation, and what it means is… if there is one provision within the statute that is unconstitutional, the question is whether that one section can simply be rendered null and excised from the statute, severed, so that the rest of the law stands, or whether that provision is so essential to the statute that it’s unconstitutionality, once it is pulled out, the whole house of cards collapses.198

The Supreme Court has generally maintained a presumption of severability, meaning that when the Court concludes that a provision of a statute is unconstitutional, the assumption is that the Court should excise the

See Texas v. United States, 945 F.3rd 355 (5th Circ. 2019). Amy Howe, Argument Analysis: ACA Seems Likely to Survive, But on What Ground?, SCOTUSBLOG (Nov. 10, 2020), https://www.scotusblog.com/2020/11/argument-analysisaca-seems-likely-to-survive-but-on-what-ground/. 196 Id. 197 Kevin C. Walsh, Partial Unconstitutionality, 85 N.Y.U.L. REV. 738, 740 (2010). 198 Barrett Confirmation Hearing, Day 3 Part 1, C-SPAN (Oct. 14, 2020), https://www.cspan.org/video/?476317-1/barrett-confirmation-hearing-day-3-part-1. 194 195

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unconstitutional provision while leaving the remaining provisions intact.199 The Court adheres to the principle that they “should not nullify more of a legislature’s work than is necessary.”200 In writing legislation, legislatures sometimes include severability clauses, which provide instructions for what should be done in accordance with legislative intent when certain provisions are later deemed to be unconstitutional. For instance, New Hampshire’s Parental Notification Prior to Abortion Act, which was the subject of Ayotte v. Planned Parenthood of Northern New England (2006), contained a severability clause, stating that if “‘any provision of this subdivision… is held invalid, such invalidity shall not affect the provisions or applications of this subdivision which can be given effect without the invalid provisions or applications.’”201 However, there are many laws in which legislatures do not include severability clauses. In such cases, the Supreme Court has established standards for determining whether the remaining provisions can function without the unconstitutional provision and for determining whether Congress would have enacted the statute without the unconstitutional provision.202 The precedents regarding severability dictate that the individual mandate is severable from the ACA. A. Examining Precedent Without Severability Clauses The Affordable Care Act does not contain a severability clause.203 However, in Alaska Airlines v. Brock (1987), the Court emphasized that “the absence of a severability clause… does not raise a presumption against

See Pratik Shah, Symposium: Severability Poses a High-Stakes Question with (What Should Be) an Easy Answer, SCOTUSBLOG (Nov. 9, 2020), https://www.scotusblog.com/2020/11/symposium-severability-poses-a-high-stakesquestion-with-what-should-be-an-easy-answer/. 200 Constitutional Remedies, supra note 2, at 387. 201 Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320, 331 (2006) (quoting N. H. Rev. Stat. Ann. §132:28 (Supp. 2004)). 202 See Mary C. Aretha, Scanning the Horizon: The Supreme Court’s Severability Analysis Post-National Federation of Independent Business v. Sebelius, 2013 MICH. ST. L. REV. 853, 863 (2013). 203 Jennifer A. Staman, et al., CONG. RSCH. SERV., LSB10389, FIFTH CIRCUIT HOLDS THE INDIVIDUAL MANDATE UNCONSTITUTIONAL: IMPLICATIONS FOR CONGRESS 5 (2020). 199

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severability,”204 establishing a precedent for applying the severability doctrine to the individual mandate. In Alaska Airlines, the Court considered whether an unconstitutional legislative veto provision was severable from the Airline Deregulation Act of 1978, and the Court concluded that the veto provision was severable.205 Justice Harry Blackmun, writing for a unanimous Court, outlined the standard for determining the severability of an unconstitutional provision, even in the absence of a severability clause. He wrote that “unless it is evidence that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.”206 In other words, if what is left of the law is viable and if it is not evident that the legislature would not have enacted the other provisions of the law, the unconstitutional clause can be severed. Justice Blackmun also wrote that “the more relevant inquiry in evaluating severability is whether the statute will function in a manner consistent with the intent of Congress.”207 In Free Enterprise Fund v. Public Company Accounting Oversight Board (2010), the Court considered the constitutionality of dual for-cause limitations on the removal of Public Company Accounting Oversight Board members.208 The Board was created as a part of the Sarbanes-Oxley Act of 2002, which did not contain a severability clause.209 The Court concluded that the dual for-cause limitation on the members’ removal violated the Constitution’s separation of powers, but that the tenured provisions were severable from the remainder of the Sarbanes-Oxley Act.210 The Court stated that the Act remained fully operative because, first, the remaining provisions were capable of functioning independently, and second, because “nothing in the statute’s test or historical context makes it ‘evident’ that Congress… would have preferred no Board at all to a Board whose members are removable at will.”211 The Court clarified that the standard outlined in Alaska

Alaska Airlines v. Brock, 480 U.S. 678, 686 (1987). Id. at 678; see Aretha, supra note 202, at 863. 206 Alaska Airlines, 480 U.S. at 684. 207 Id. at 685. 208 Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477 (2010). 209 Aretha, supra note 202, at 865. 210 Free Enter. Fund, 561 U.S. at 480. 211 Id. at 481; see Alaska Airlines, 480 U.S. at 684. 204 205

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Airlines was concerned with whether the provisions could function independently and whether Congress would have preferred the act without the specified provisions than no act at all.212 In Seila Law LLC v. Consumer Financial Protection Bureau (2020), the Court considered the constitutionality of the Consumer Financial Protection Bureau (CFPB) director’s removal provision. In this case, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 established the CFPB, which was an independent agency headed by a single director not removable by the president.213 The Court concluded that the CFPB’s structure was unconstitutional because it “clashes with constitutional structure by concentrating power in a unilateral actor insulated from Presidential control.”214 However, the Court concluded that the removal provision was severable from the other statutory provisions in the Dodd-Frank Act because it was “clear that Congress would prefer to use a scalpel rather than a bulldozer in curing the constitutional defect.”215 Thus reaffirming Alaska Airlines, the Court ruled that the unconstitutional provision should be severed, unless the remaining statute would not have been enacted by Congress. In another case regarding severability, Justice Brett Kavanaugh rightly warned the Court of the dangers of invalidating more of a statute than necessary: If courts had broad license to invalidate more than just the offending provision, a reviewing court would have to consider what other provisions to invalidate: the whole section, the chapter, the statute, the public law, or something else altogether. Courts would be largely at sea in making that determination, and usually could not do it in a principled way… That is the kind of free-wheeling policy question that the Court’s presumption of severability avoids.216

Aretha, supra note 202, at 865. Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2192 (2020). 214 Id. at 2192. The Court reasoned that the structure of the CFPB differed in important respects from other independent agencies because it was headed by a single director, who had broad enforcement power and who was not removable by the President except for inefficiency, neglect of duty, or malfeasance in office. The Court concluded that this violated the principle of separation of powers. 215 Id. at 2210. 216 Barr v. Am. Ass’n of Political Consultants, 140 S. Ct. 2335, 2351 (2020). 212 213

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Justice Kavanaugh’s characterization of the presumption of severability highlights the Court’s ability to assist Congress by allowing Congress to make policy decisions regarding the remaining legislation. B. The Importance of Stare Decisis The doctrine of stare decisis holds that principles or rules established in one case will be applied to new cases, provided that the new cases have substantially similar facts to the original case. Justice Clarence Thomas accurately noted that “stare decisis does not compel continued adherence to… erroneous precedent.”217 However, adherence to well-reasoned precedent promotes predictability, consistency, and stability in the Court’s rulings.218 Specifically, legal stability is extremely important because it “allows lawyers to give clients sound advice and allows ordinary citizens to plan their lives,” but “each time the Court overrules a case, the Court produces uncertainty.”219 In fact, the Court has stated that “overruling a case always requires ‘special justification’ – over and above the belief ‘that precedent was wrongly decided.’”220 Therefore, a present Court’s belief that a previous Court made a wrong decision does not alone justify overturning precedent, nor does the fact that the sitting Court would have reached a different decision based on the same facts.221 In fact, based on the history of the Court, a firm conclusion

Franchise Tax Bd. v. Hyatt, 139 S. Ct. 1485, 1492 (2019). See generally Citizens United v. FEC, 558 U.S. 310, 408 (2010) (Stevens, J., dissenting) (“I am not an absolutist when it comes to stare decisis… But if this principle is to do any meaningful work in supporting the rule of law, it must at least demand a significant justification, beyond the preferences of five Justices, for overturning settled doctrine.”); see generally District of Columbia v. Heller, 554 U.S. 570, 680 (2008) (Stevens, J., dissenting) (“As Justice Cardozo observed years ago, the ‘labor of judges would be increased almost to the breaking point if… one could not lay one’s own course of bricks on the secure foundation of the courses laid by others who had gone before him’”). 219 Franchise Tax Bd., 139 S. Ct. at 1506 (Breyer, J., dissenting). 220 Kimble v. Marvel Entm’t, LLC, 576 U.S. 446, 447 (2015) (quoting Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 266 (2014)). 221 Franchise Tax Bd., 139 S. Ct. at 1505-06 (Breyer, J., dissenting) (“an argument that we got something wrong – even a good argument to that effect – cannot by itself justify scrapping settled precedent”); Knick v. Twp. of Scott, 139 S. Ct. 2162, 2190 (2019) (Kagan, J., dissenting) (“but the entire idea of stare decisis is that judges do not get to reverse a decision just because they never liked it in the first instance”). 217 218

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can be draw that a precedent should be overturned if and only if it is doing significant harm to the country.222 C. Severability, the Individual Mandate, and the ACA An evaluation of whether the applicability of the presumption of severability to the individual mandate first requires a consideration of the Act’s capacity to function without an operative individual mandate. In Alaska Airlines, the Court wrote that “Congress could not have intended a constitutionally flawed provision to be severed from the remainder of the statute if the balance of the legislation is incapable of functioning independently.”223 The Act was clearly capable of functioning without the individual mandate, since the Act had been functioning independently since 2017 when Congress changed the shared responsibility payment to zero dollars. The Congress that nullified the mandate left the remainder of the law intact, and therefore, the Act without the individual mandate was able to continue to function in a manner consistent with the intent of the Congress that changed the penalty to zero dollars in 2017. An evaluation of the applicability of the presumption of severability to the individual mandate also requires a consideration of whether there is evidence to suggest that Congress would have enacted the statute without the unconstitutional provision. The Act’s attempt to address societal problems not directly related to the cost of health insurance and the number of people buying into the health insurance pool acts as such evidence. Section 4305 of the Affordable Care Act, for example, regulates the needed nutrition labeling of menu items at chain restaurants. The provision requires a “nutrient content disclosure statement adjacent to the name of the standard menu item” including the number of calories contained in the item.224 Section 4307 of the Affordable Care Act provides another example because it mandates that employers give reasonable break times for nursing mothers. The provision

E.g., Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954) (“Separate educational facilities are inherently unequal”) (overturning Plessy v. Ferguson, 163 U.S. 537 (1896)); e.g., Gideon v. Wainwright, 372 U.S. 335, 342 (1963) (“We think the Court in Betts was wrong, however, in concluding that the Sixth Amendment’s guarantee of counsel is not one of these fundamental rights”) (overturning Betts v. Brady, 316 U.S. 455 (1942)). 223 Alaska Airlines, 480 U.S. at 684. 224 Patient Protection and Affordable Care Act, 26 U.S.C. § 4305 (2010). 222

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requires that “an employer shall provide a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth.”225 Since there are numerous provisions in the statute that show that Congress addressed a variety of health- and wellness-related issues, it is evident that Congress very well could have enacted such a statute without the unconstitutional provision. The severability merit of California fits squarely into the Court’s history of severability jurisprudence because of its substantially similar facts to Alaska Airlines and other major landmark decisions regarding severability. Therefore, ruling that the individual mandate is inseverable would be at odds with the Court’s severability precedent. The Court in Alaska Airlines held that an unconstitutional provision can be severed if what is left is operative and if there is no evidence to suggest that the legislature would not have enacted the other provisions without the unconstitutional provision. Based on the legislative history of the ACA as outlined above, it is reasonable to conclude that based on Alaska Airlines’ standards, the individual mandate can be severed. In addition, Alaska Airlines has not been doing significant harm to the country, which has been previously noted as the only reason to overturn a precedent. In fact, Alaska Airlines has positively contributed to necessary regulations, for example, by protecting consumers,226 taxpayers,227 and investors228 from fraudulent financial practices by allowing Congressional acts to stand. Therefore, the presumption of severability applied to the individual mandate, fitting within precedent frameworks, benefits not only the institutional stability of the Supreme Court but also Congress’ crucial and well-founded ability to regulate healthcare. IV. CONCLUSION: IMPLICATIONS OF SEVERABILITY The application of the presumption of severability to the individual mandate of the Affordable Care Act fits well within the boundaries of the Supreme Court’s severability precedent. California v. Texas and the

Id. § 4207. E.g., Dodd-Frank Wall Street Reform and Consumer Protection Act, 15 U.S.C. § 619 (2012). 227 Id. 228 E.g., Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat. 745 (codified in scattered sections of 15 & 18 U.S.C.). 225 226

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presumption of severability relating to the individual mandate have significant stakes for severability and the empowerment of Congress. An excessively empowered Supreme Court might nullify an entire statute based on the unconstitutionality of a single provision, requiring Congress to revisit the idea of the statute. However, it is increasingly difficult for Congress to legislate effectively and efficiently. In fact, “an overlooked consequence of the current polarization and gridlock in Congress… has been a huge transfer of power to the Supreme Court. It now almost always has the last word, even in decisions that theoretically invite a Congressional response.”229 Inviting a Congressional response does not necessarily lead to such a response. An example of this predicament arose in Shelby County v. Holder (2013). Shelby County considered the constitutionality of the renewal of Section 5 of the Voting Rights Act, which required states to obtain federal permission before enacting laws relating to voting under the constraints of Section 4(b), which applied Section 5’s requirements to only some states using a coverage formula.230 Chief Justice Roberts, writing for the majority in the closely divided decision, concluded that the fundamental problem with Section 4 was that Congress did not use updated data to create an updated coverage formula.231 Based on Chief Justice Roberts’ opinion, Congress could write an updated Section 4 coverage formula. However, if Congress did this, the Court would undoubtedly be directly presented with the question of the constitutionality of Section 5 of the Voting Rights Act. Congress’ hands are evidently tied, rendering them unable to write a new coverage formula. This dilemma highlights the problems that Congress has when revisiting legislation. Declining to sever puts Congress in a similar predicament. Declining to sever empowers the Supreme Court over Congress because it is so difficult to legislate that, rather than going back and editing legislation that was struck down due to one unconstitutional provision, Congress may discard

Adam Liptak, In Congress’s Paralysis, a Mightier Supreme Court, N.Y. TIMES (Aug. 20, 2012), https://www.nytimes.com/2012/08/21/us/politics/supreme-court-gains-powerfrom-paralysis-of-congress.html; see Richard L. Hasen, End of the Dialogue? Political Polarization, the Supreme Court, and Congress, 86 S. CAL. L. REV. 205 (2013). 230 Shelby County v. Holder, 570 U.S. 529, 538 (2013). 231 Id. at 557. Justice Ruth Bader Ginsburg notably wrote in her dissent that “throwing out preclearance… is like throwing away your umbrella in a rainstorm because you are not getting wet.” Id. at 590 (Ginsburg, J. dissenting). 229

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the idea altogether. The presumption of severability allows acts of Congress to stand and continue to regulate in necessary areas, such as Medicaid expansion, a component of the Affordable Care Act. Thus, declining to sever specific provisions could result in the Supreme Court striking down entire acts of Congress, which “is the gravest and most delicate duty that this Court is called on to perform.”232 The delicacy of striking down acts of Congress demonstrates why the presumption of severability applied to the individual mandate fits within the Court’s precedents, and in general, the use of a scalpel is often more efficient than that of a bulldozer. *** This Note was edited by Reeve Churchill.

232

Blodgett v. Holden, 275 U.S. 142, 148 (1927) (Holmes, J., concurring).

NOTE PRESUMPTION OF ABUSE: HOW BAPCPA UNDERMINES THE BANKRUPTCY SYSTEM Thomas Murray*

233

The bankruptcy courts have traditionally acted as a separate system of litigation among federal courts, protecting the most financially vulnerable members of the public. Federal bankruptcy courts act as adjunct tribunals for those individuals or entities who have no feasible recourse for meeting their outstanding obligations. The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) was legislation co-sponsored and written by lobbyists of the Consumer Lending industry, which exacerbated an existing imbalance of power, favoring creditors. Under the pretense of seeking to curb widespread debtor abuse, this expansive legislation was passed with little sustained scrutiny by lawmakers. It was only in subsequent years that the dramatic consequences became apparent. The bankruptcy court, conceived to protect the financially vulnerable, has transformed into a pay-to-play system, where favorable outcomes are determined by economic background and legal representation. Through disruptions to the parity and effectiveness of the court, the BAPCPA has fundamentally altered the function of the Bankruptcy Court. New standards such as the “Means Test” use presumptions of debtor fraud to inflate the expense of filing. Harsh penalties target those with little financial literacy or liquid assets. Whereas prior bankruptcy reform was adopted to meet changing economic environments, the BAPCPA has actively worsened current issues. Exacerbating consumer debt trends, the 2005 legislation restricted the refiling of petitions, prioritized certain, and outright eliminated the dischargeability of private educational loans. The aforementioned stipulations disproportionately impact low-income debtors as well as unsecured creditors. By creating barriers to access, strengthening preferred creditors, and introducing contradictory stipulations, the BAPCPA has created an acute need for bankruptcy reform. * B.S. Candidate for Public Accounting (Major), and Business Law & Ethics (Minor) Fordham Gabelli School of Business, Class of 2023. I would like to extend my thanks to the entirety of the Fordham Undergraduate Law Review, without their support none of this would have been possible. Special thanks to Christopher Kerrane, Mary Cacevic, and Elizabeth Hartnett for their support during the editorial process. 233

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I. INTRODUCTION ..........................................................................................51 A. BAPCPA ...........................................................................................52 II. DISCHARGEABILITY OF DEBTS & CONTRADICTING PROVISIONS ..............55 III. CHANGING OUTCOMES ...........................................................................58 A. Proposed Reform ..............................................................................60 IV. CONCLUSION...........................................................................................63 I. INTRODUCTION Under the jurisdiction of federal law, bankruptcy courts have existed in various forms since the nineteenth century. Typically coinciding with economic downturns, bankruptcy was used as a means of alleviating financial hardship for distressed members of the public. Through an elective process,234 individuals could petition under one of the bankruptcy chapters. These avenues of bankruptcy are distinguished by varying financial solvency, entity status,235 and paths to repayment. The most common consist of a repayment plan restructure under Chapter 13,236 reorganization of assets for corporations or other entities under Chapter 11,237 and the attainment of outright forgiveness of debts by estate liquidation under Chapter 7.238 In situations in which repayment was not feasible and often made impossible by debt obligations, filing for bankruptcy became mutually beneficial for all parties. Bankruptcy as it is understood today was codified during the Great Depression. On a conservative-leaning bench, the U.S. Supreme Court in 1934 was distinguished for its axing of new federal programs and legislation during the New Deal era. However, in a landmark case, Local Loan Co. v. Hunt (1934), the Hughes Court established this understanding of the revamped bankruptcy code: This purpose of the act has been again and again emphasized by the courts as being of public as well as private interest, in that it gives to the honest but unfortunate debtor who surrenders for distribution the property which he owns at the time of bankruptcy, a new

See 11 U.S.C. § 301. See id. § 109. 236 See id. § 1301. 237 See id. § 1121. 238 See id. § 727. 234 235

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opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.239

Calling upon the common law origins of the honest yet unfortunate debtor, this ruling solidified the bankruptcy court as a public good, and from this understanding, the modern bankruptcy court has evolved. A later ruling by the Burger Court in Perez v. Campbell (1971) affirmed the precedent of Local Loan Company on the intent of the bankruptcy courts, citing the understanding as federal law under the protections of the Supremacy Clause of the U.S. Constitution.240 This area of federal law underwent several acts of legislation throughout the twentieth century. For example, Congress expanded the pool of eligible petitioners241 from solely private citizens to corporations and legal entities, enumerated the chapter system currently used,242 as well as standardizing all prior code.243 As it has adapted to changing economic conditions, the bankruptcy court has continued to evolve under the direction of congressional oversight and the appellate courts. Typically, these reforms have centered around discouraging outright discharges and incentivizing creditor-debtor cooperation on resolution plans. However, the fundamental understanding of bankruptcy has remained that of a public good for honest yet unfortunate debtors.244 A. BAPCPA The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 was the successful iteration of several prior reform bills.245 The essence of this bankruptcy overhaul asserted that rampant abuse of the courts by high income petitioners had occurred. Opening statements regarding this legislation from co-sponsor Iowa’s Senator Chuck Grassley argued, “it should be more difficult for people to file for bankruptcy… [the American

See Local Loan Co. v. Hunt, 292 U.S. 234, 244 (1934). Perez v. Campbell, 402 U.S. 637, 660 (1971). 241 See Bankruptcy Reform Act of 1978, 11 U.S.C. § 1101-1174. 242 Id. 243 Id. 244 Local Loan Co., 292 U.S. at 244. 245 See Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8, 119 Stat. 23-217. 239 240

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people] are tired of paying for high rollers who game the current system and its loopholes.”246 Supporters of the bill argued that through these carefully crafted measures, they could reduce and scrutinize the filings of specific highincome individuals who had the means to meet their financial obligations. Advocates of bankruptcy reform provided additional assurances that citizens “under the median income in our country who apply for bankruptcy almost certainly will be accorded almost automatically the fresh start which their financial circumstances dictate.”247 The discrepancy between the previous understanding of the bankruptcy courts prior to 2005 and the provisions of the BAPCPA evoked widespread controversy among retired court officials, bar associations, and legal scholars. Active practitioners of bankruptcy law composed some of the most vocal of critics of the bill. Among them was Judge William T. Bodoh, a retired bankruptcy judge. He wrote: “It includes direct contradictions, keywords and phrases that are not defined, and grammatical mistakes that make both the Courts and practitioners’ jobs in divining congressional intent difficult indeed.”248 Imprecise wording, conflicting language, and outright grammatical errors have presented a tremendous challenge to the various circuits of bankruptcy court.249 Local municipalities were forced to supplant the BAPCPA with unclear direction. Conflicting rulings over a homeowner association’s status as a secured creditor,250 the nature of the automatic dismissal to petitions,251 and the nature of the estate in relation to tax deductions252 arose immediately following the passage of the BAPCPA.

Bankruptcy Reform Hearing, 109th Cong. (2005) (opening statement of Sen. Chuck Grassley). 247 145 Cong. Rec. 8509 (1999) (statement of Rep. George Gekas). 248 Benjamin S. Seigel, Chapter 11 After BAPCPA: Alternatives Revisited, BUCHALTER NEMER, https://www.buchalter.com/wp-content/uploads/2013/09/CHAPTER-11-AfterBAPCPA-Alternatives-Revisited.Seigel.pdf (quoting William T. Bodoh). 249 Bankruptcy Reform Hearing, 109th Cong. (2005) (opening statement of Sen. Chuck Grassley). 250 See Brandt H. Stitzer, HOA Fees: A BAPCPA Death-Trap, 70 WASH. & LEE L. REV. 1395 (2013). This Note discusses 11 U.S.C § 523(a)(16), specifically how exemptions from dischargeability within BAPCA create abuse situations perpetrated by HOAs as secured creditors. 251 See In re Parker, 351 B.R. 790, 801 (Bankr. N.D. Ga. 2006). 252 Seigel, supra note 248. 246

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Legal criticism of the BAPCPA bill focused on many of the smaller provisions. Outside of the focal points of the legislation, scholars argued that the inclusion of a variety of procedural burdens undermined access to bankruptcy courts regardless of income level or ability to pay.253 Provisions amending municipal petitions created financial barriers to access, such as Section 521(i)(1),254 wherein: “the case shall be automatically dismissed effective on the 46th day after the filing of the petition.”255 With automatic dismissal accompanied by the barring from refiling and a permanent loss of fees, these measures dissuade petitioners lacking financial stability. Pursuant to Sections 109(h)(1) and 727(a)(11),256 petitioners must additionally undergo counseling prior to and during their case out of personal expense. The resulting impact of these changes has dramatically limited the ability of members of the public to file. The increases in procedural expenses doubly impact low-income petitioners. Those filing under Chapter 7 Bankruptcy face greater complexity in procedures with less disposable income to retain legal representation. The impact of these measures are felt strongest among lowincome and low-financial literacy demographics rather than high-income individuals undertaking bad faith filings, many of whom advocates for the BAPCPA purported it would target.257 University of Michigan Law Professor James White goes further in arguing that, “by raising the cost in hundreds of little ways, you might make bankruptcy unpalatable to many who currently take bankruptcy.”258 While White and other legal experts attempted to discern the authors’ intentions, the stipulations and empirical evidence of its adverse effect are now apparent. With the passage of the BAPCA, the very subsection of the public whom bankruptcy courts were created to protect faced new barriers to filing.

253 See Michael Sousa, Legitimizing Bankruptcy Petition Preparers: A Socio-Legal Prescription for Change, U. DENVER LEGAL STUDIES 1 (2015) (working paper no. 15-04). 254 E.g., 11 U.S.C. § 521(i)(1) (2006). 255 Id. 256 See id. §§ 109(h)(1), 727(a)(11), 1328(g)(1) (2006). 257 Bankruptcy Reform Hearing, 109th Cong. (2005) (opening statement of Sen. Chuck Grassley). 258 John A.E. Pottow et al, Did Bankruptcy Reform Fail? An Empirical Study of Consumer Debtors, 82 AM. BANKR. L.J. 349 (2008).

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II. DISCHARGEABILITY OF DEBTS & CONTRADICTING PROVISIONS A focal point of the Bankruptcy Abuse Prevention and Consumer Protection Act was curtailing perceived abuses of Chapter 7 Bankruptcy. Through an analysis of dischargeability changes and erroneous provisions, the scope of this effort and its relationship with Local Loan Company v. Hunt is discussed below. Outside of efforts to reduce high-income individuals from filing under Chapter 7, the BAPCPA instituted a variety of changes in debt preference and dischargeability. One of the most pivotal changes was the expansion of nondischargeable debts to include private educational loans. Joining the dischargeable classification of federal education loans, the BAPCPA provided one standard as to how to discharge these debts. Under Section 220, Chapter 7 would be eligible for partial Federal & Private Education Debt discharges in cases where repayment “would impose an undue hardship (emphasis added) upon either the debtor or the debtor's dependents.”259 The issue inherent in this reused exception is “the statute Congress crafted gives the courts absolutely no guidance as to what would constitute ‘undue hardship’ other than a Webster’s dictionary.”260 Bankruptcy courts have since been forced to interpret what constitutes ‘undue hardship’ in repayment by Debtors. Various circuit courts have supplanted this language with the standard set by Brunner v. New York State Higher Education Services Corporation (1987),261 under which the District Court established conditions from external legislation262 where repayment would be considered an undue hardship. However, the issue inherent in this current law remains the lack of clarity within the BAPCPA. Instead of addressing what standard Congress considers to be an undue hardship, the courts are forced to apply prior tests and precedents. The failure of the BAPCPA to clarify this standard further complicates an already pressing issue of interpretation. The resulting lack of clarity and murky standards ultimately restrict the rights of Chapter 7 debtors

Id; Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8, §220, 119 Stat. 23-217. 260 See Speer v. Educ. Credit Mgmt. Corp. (In re Speer), 272 B.R. 186, 191 (Bankr. W.D. Tex. 2001). 261 Brunner v. New York State Higher Educ. Servs. Corp., 831 F.2d 395 (2d Cir. 1987). 262 Id. 259

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from pursuing full discharges. A study conducted in the American Bankruptcy Journal illuminated the issue inherent in this lack of codification.263 In analyzing total adversary actions pursuing student loan discharge, the study found thirty-seven percent of cases attained some form of relief, irrespective of representation or income level. 264 Dispelling prior assertions of discharges being impossible, the data suggests that caselaw supplanting clear codified standards was effective in determining eligibility for discharge. However, the complete and utter lack of clarity offered by the BAPCPA on the standard has dissuaded most eligible debtors. Debtors who pursue an adversary action independent of success only consist of 0.01% of total Chapter 7 debtors.265 And this phenomenon not only restricts debtors’ rights of recourse; improper discharges undermine court efficiency. Discharge orders excluding eligible student debt may lead to higher rates of petitioner recidivism in filing. External pressures of higher median student debt among petitioners across all chapters suggest the need for legislative redress. Contradicting provisions within the BAPCPA have become an unfortunate hallmark of many cases, where courts are forced to discern congressional intent to set precedent. A number of these appeals focused on the language of Section 521(i)(l): Requires automatic dismissal if a voluntary Chapter 7 or 13 debtor fails to furnish all mandatory information, or fails to timely file the requisite schedules within 45 days of filing a petition. Requires the court to order dismissal within five days of a request by a party in interest for debtor's failure to timely submit requisite documentation.266

In the case of In re Parker (2006), Debtor George Allen Parker’s attorney filed a motion for dismissal following the debtor’s change of representation.267 Citing the debtor’s failure to attend certified credit counseling within 45 days of petition,268 the Debtor argued that the case

Jason Iuliano, An Empirical Assessment of Student Loan Discharges and the Undue Hardship Standard, 86 AM. BANKR. L.J. 495 (2012). 264 Id. at 505. 265 Id. 266 Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8, §316, 119 Stat. 23-217. 267 See In re Parker, 351 B.R. 790 (Bankr. N.D. Ga. 2006). 268 Id. at 800. 263

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should be dismissed pursuant to Section 521(i)(l).269 This motion was denied after an examination of automatic within ‘automatic dismissal’. The Court asserts that while the language of automatic implies immediate dismissal without further proceedings, the motion of debtor was not a ministerial act and therefore the Court could not dismiss the case without a hearing.270 Furthermore, Judge Diehl was forced to exercise Judicial Discretion in discerning Congressional intent in the language of Section 521(i)(l). Provisions limiting debtor abuses within Chapter 7 establish that “the interest of creditors and the bankruptcy estate, is represented by the United States Trustee, the trustee and individual creditor, are best served by denial of debtor’s motion.”271 This understanding was established as precedent in Wirum v. Warren (2009),272 when the Ninth Circuit Court of Appeals reaffirmed the Bankruptcy Courts’ right to waive the forty-five-day deadline in cases of debtor abuse. However, in Rivera v. Miranda (2007),273 the District Court ruled against exercising judicial discretion in matters of Section 521(i)(l) and automatic dismissal. With the intention of avoiding a trustee motion to settle a suit at a far lower sum than preferred, the debtor moved that due to his failure to include payment advice or monthly net income in relation to this outstanding asset on the initial petition, his case should be dismissed. Abuse of Chapter 7 is apparent in that the debtor moved to unilaterally dismiss the case, seeking a more favorable ruling in state court. While the bankruptcy court dismissed the motion citing In re Parker,274 the district judge asserted that the court must act in accordance with 11 U.S.C. Section 521(i)(l): “After the expiration of the specified period set forth, there are no exceptions, no excuses, only dismissal and the consequences that flow therefrom.”275 The judge’s ruling went further in stating that provisions such as Section 521(i)(l) were deliberately intended to supplant judicial discretion. While this decision was

Id. at 802. Id. 271 Id. at 801. 272 See Wirum v. Warren (In re Warren), 568 F.3d 1113 (2009). 273 See Rivera v. Miranda, 376 B.R. 382 (D. Puerto Rico 2007). 274 Id. at 386 (quoting In re Ott, 343 B.R. 264, 268 (Bankr. D. Co. 2006)). 275 Id. 269 270

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subsequently reversed and remanded by the First Circuit Court of Appeals,276 a similar ruling in In re Bonner (2007) remains standing.277 While the Bankruptcy Court has been able to establish case law and precedent to clarify the ambiguous language in the BAPCPA, fundamental issues within the legislation remain. The expansion of non-dischargeable debts has exacerbated existing unresolved standards. Unclear language and stringent provisions replacing areas of judicial discretion have only enabled further abuses of the court. With a brief perspective on issues inherent in the BAPCPA, population trends within the court can now be contextualized. III. CHANGING OUTCOMES The ensuing years of implementation of the BAPCPA suggested a failure in achieving its intentions, and a purpose antithetical to that of Local Loan Company v. Hunt. Academic research and accumulated population data since the implementation of the BAPCPA have revealed the impact on bankruptcy petitioners. A study conducted by various research faculty in the American Bankruptcy Journal found a drastic decrease in total cases filed across all income groups.278 Utilizing a 10-year analysis of annual growth in bankruptcy filings, the projected total of petitioning households in the first year of the BAPCPA’s implementation would have been 1.6 million.279 Actual filings for 2007 totaled 827,000, an approximate 48% decrease in utilization of the courts. Total filings across all chapters have consistently decreased following BAPCA’s passage in 2006. This trend culminated in 2020’s total filings of 529,068, marking a 35-year low in case filings.280 Record low filings during a pandemic-induced economic crisis in which

See Segarra-Miranda v. Acosta-Rivera (In re Acosta-Rivera), 557 F.3d 8, 9 (1st Cir. 2009). 277 In re Bonner, 374 B.R. 62, 64-65 (Bankr. W.D.N.Y. 2007). 278 Pottow et al., supra note 258. 279 Id. at 350. 280 2020 Bankruptcy Filings Lowest in 35 years, INTRADO GLOBENEWSWIRE (Jan. 5, 2021), https://www.globenewswire.com/news-release/2021/01/05/2153670/0/en/2020Bankruptcy-Filings-Lowest-in-35-years.html. 276

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national unemployment reached 14.7%281 suggests courts are functioning asynchronous to current economic conditions. Independent of Chapter 13 plan confirmations or Chapter 7 debt discharges, this decrease in total filings indicates a loss in public trust in the bankruptcy system. Conditions of the BAPCPA have worsened debt obligations discharged on a case-by-case basis, as a greater number of households are hesitant to pursue Chapter 7. Researchers indicated a statistically significant increase to the average annual percentage growth of unsecured debt among petitioners from 3% to 7.3% from the years 2001 to 2007.282 Accompanied by trends of debt accumulation was a decrease in median household net worth from $19,500 to -$24,500 over the same period283 demonstrating a lack of asset growth to accompany this drop in median net worth. Furthermore, survey respondents to the study consistently remarked on the period they waited in dire financial situations prior to filing to be significantly larger. Chapter 7 and 13 petitioners saw an eleven percent jump in waiting periods of two years or more prior to filing from 2001 to 2007.284 Surpassing debt growth rates of prior decades and inflation, these figures demonstrated a dramatic increase to debt accumulation prior to filing. Advocates for the BAPCPA cited a “$550 a year in… hidden tax”285 due to expenses from bad faith filings on every household. However, this data suggests that the losses faced by many businesses are only growing per household filing. Disincentivizing Chapter 7 leads to individuals who should be pursuing that avenue heading to Chapter 13 repayments plans. The issue inherent with this approach is that households who cannot feasibly repay their obligations will fail to meet payment obligations during the repayment plan, or outright be denied plan confirmation. This in turn undermines the efficiency and caseload of Chapter 13 Bankruptcy while increasing the debt of those filing Chapter 7. Furthermore, these measures lacked precision in

281 The Economics Daily, Unemployment rate falls to 6.9 percent in October 2020, U.S. BUREAU OF LABOR STATISTICS (Nov. 12, 2020), https://www.bls.gov/opub/ted/2020/unemployment-rate-falls-to-6-point-9-percent-inoctober-2020.htm. 282 Pottow et al, supra note 258, at 370. 283 Id. at 371. 284 Id. at 382. 285 Bankruptcy Reform Hearing, 109th Cong. (2005) (opening statement of Sen. Chuck Grassley).

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eliminating high-income bad-faith filings. Assessing the BAPCPA’s lack of success in achieving legislators’ intent is key to understanding its impact. A. Proposed Reform Academics and experts have discussed various methods to overhaul the current bankruptcy system. Whether by legislative action or evolution of court precedent, various parties have argued for a response to the issues within the BAPCPA. That by weighing the demonstrable damage of the BAPCPA to court efficiency, the bankruptcy court must be updated. A variety of legislation has been proposed since the 2006 changes to codification. Bills such as the Business Reorganization and Job Protection Act of 2009286 were introduced on the floor but failed to reach any form of voting.287 The 2009 legislation sought to alleviate pressure on retailers and smaller businesses from the 2008 financial crisis.288 Reducing barriers to repayment plan approval from the BAPCPA, proponents argued that requirements for collateral on various creditors prevented many reformable businesses from dissolution. Unfortunately, the narrow scope of the overhaul resulted in little effort to expedite the bill’s passage. Another proposition that gained momentum was the Consumer Bankruptcy Reform Act of 2020.289 Authors and proponents of the bill cite “economic consequences of the COVID-19 pandemic”290 and ensuing financial pressures on households as creating an immediate need for reform. The bill sought to simplify the process of petitioning within Chapter 7 and Chapter 13, eliminating many of the entry-level tests introduced with the BAPCPA. Through reducing overhead filing fees and reducing onus on debtors, the bill’s authors intended to relax restrictions. Co-Sponsor Senator Elizabeth Warren argued current statutes fail “to provide financially struggling individuals and families [...] relief”291

Business Reorganization and Job Preservation Act, H.R. 1942, 111th Cong. (2009). Id. 288 Id. § 11 U.S.C 365 (d)(4). 289 Consumer Bankruptcy Reform Act, S. 4991, 116th Cong. (2020). 290 Elizabeth Warren, Warren and Nadler Introduce the Consumer Bankruptcy Reform Act of 2020 (Dec. 9, 2020), https://www.warren.senate.gov/newsroom/press-releases/warrenand-nadler-introduce-the-consumer-bankruptcy-reform-act-of-2020. 291 Id. 286 287

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Additionally, the bill eliminated aforementioned loopholes in real estate assets and non-taxable income. This bill received far more public and academic support than prior proposed reform. Professor Robert Lawless from the University of Illinois praised the bill’s measures, highlighting “after seven years from when the [student] loans became due, they would be treated pretty much like any other debt in a bankruptcy case.”292 However, this bill also failed to reach rollcall or preliminary voting in either house.293 In every instance, these individual efforts failed to reach critical thresholds for floor discussions or preliminary voting, as they focused on individual failings within the BAPCPA. However, these measures shared the goal of restoring statutory language set in place prior to the implementation of the BAPCPA. The language introduced in 2006 to petitioning across various chapters of Bankruptcy was singled out by both bills. Successful bankruptcy legislation since 2005 typically dealt with minor alterations to code in relation to other areas of law. However, the most expansive of this group of legislation existed in the Small Business Reorganization Act of 2019,294 which introduced Subchapter V. In response to barriers present within Chapter 11, the legislation introduced a new route for sole-proprietorships or self-run business owners. In addition to this, the act would remove debtor obligations to pay for the U.S. Trustee’s fees.295 This new chapter eliminated many of the intrusive elements to Chapter 11 filing. This bill acted out of a perceived imbalance of recourse and power between debtor and creditor in business bankruptcies. Yet similar efforts targeting existing chapters have failed to acquire the same bi-partisan momentum of this bill. Beyond outright alteration of the BAPCPA’s language by Congress, Bankruptcy courts have attempted to update interpretations of the BAPCPA and foundational code for modern needs. A surprising evolution in the understanding of undue hardship and the accompanying Brunner test occurred in Rosenberg v. New York State Higher Education Services

Chris Arnold, Myth Busted: Turns Out Bankruptcy Can Wipe Out Student Loan Debt After All, NATIONAL PUBLIC RADIO (Jan. 22, 2020), https://www.npr.org/2020. 293 Consumer Bankruptcy Reform Act, S. 4991, 116th Cong. (2020). 294 Small Business Reorganization Act of 2019, Pub. L. No. 116-54, 133 Stat. 1079. 295 See 28 U.S.C. § 1930(a)(6)(A) (2019). 292

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Corporation (2020),296 wherein the Chief Justice of the Southern District of New York made a somewhat large expansion as to what In re Brunner297 renders an undue hardship. The case reconsiders what constitutes the following criteria: (1) that the debtor cannot maintain, based on current income and expenses, a “minimal” standard of living for herself and her dependents if forced to repay the loans; (2) that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (3) that the debtor has made good faith efforts to repay the loans. 298

The opinion states that subsequent precedent to In re Brunner created a mythos of debtors pursuing discharges as acting in bad faith. Chief Judge Morris alludes to such cases299 as contradicting the original intention and framework in In re Brunner. The judicial opinion states that these rulings apply the third criteria of attempting repayment in good faith of the Brunner test beyond the original scope. Furthermore, the ruling went on to argue that a similar escalation of the Brunner test as seen in prior cases too narrowly determined what constituted a minimal standard of living as well as the likelihood of conditions changing. Perhaps the most dramatic departure from precedent was how Judge Morris measured the Petitioner's current income in relation to the first prong of the test. In situations where the petitioner is in default, Morris argues for its inclusion to monthly expenses. In this scenario, such repayments result in a clear negative monthly income: “Petitioner has successfully proven that he cannot immediately pay his Student Loan in full.”300 In a loan reaching maturity of $300,000, the second prong of the test was satisfied regardless of future financial prospects.301 In essence, this ruling regards a loan in default as an inhibiting factor for any future repayment. And with all three prongs of Brunner thus satisfied, the motion for summary judgment (Debt Discharge) was granted. With the ruling only issued in

Rosenberg v. N.Y. State Higher Educ. Servs. Corp. (In re Rosenberg), 610 B.R. 454 (Bankr. S.D.N.Y. 2020). 297 Brunner, 831 F.2d. 298 Rosenberg, 610 B.R. at 458. 299 See Kelly v. Sallie Mae Serv. (In re Kelly), 351 B.R. 45, 55-56 (Bankr. E.D.N.Y. 2009). 300 Rosenberg, 610 B.R. at 460. 301 Id. at 461. 296

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January 2020, subsequent rulings have not yet reached a consensus. However, cases such as these represent a gradual shift in how the courts are addressing current economic conditions. And, with greater numbers of Chapter 7 petitioners seeking discharge, the barriers introduced by the BAPCPA can be circumvented. IV. CONCLUSION In analyzing the bankruptcy courts, the goal of economic justice is foremost and prevalent. This system was designed as a circumstantial yet invaluable place of arbitration wherein individuals who could no longer endure their financial conditions were granted relief. And in protecting the fundamental rights of both debtors and creditors, both could engage in a process to achieve mutually beneficial outcomes. Yet when evaluating the consequences of the 2005 Bankruptcy Abuse Prevention and Consumer Protection Act, these aspects become muddled. By swinging the pendulum from fair and equitable protections for both parties to presumptions of fraudulent and bad faith debtors, the BAPCPA has acted antithetical to Local Loan Company.302 Instead of upholding the integrity of the bankruptcy process, it hinders public access and contextual discretion. It implements code that assigns the ‘honest but unfortunate debtor’ a severe burden of proof in establishing good faith subverts the court as a “public interest.”303 Reductions to total filings since implementation have not demonstrated abuse prevention, rather limit all filings and bankruptcy petitions outright. The very provisions designed to eliminate bad faith filings among Chapter 7 petitioners serve only to enable unilateral abuses by debtors.304 Without careful consideration of language and context, many of the provisions intended to eliminate bad faith actions actually created opportunities for abuse. Moreover, expanding the criteria of dischargeable debts has only exacerbated previous issues of undefined standards. It has functioned in direct conflict with changing debt identities of households in the United States. Through increasing financial barriers to access, discouraging existing avenues of discharge, and contradictory stipulations, the BAPCPA has undermined the original intent of the bankruptcy court. Only through thorough and careful See Local Loan Co. v. Hunt, 292 U.S. Id. 304 See In re Parker, 351 B.R. 302 303

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examination of bankruptcy proceedings can Congress evolve courts to changing economic conditions. *** This Note was edited by Mary Cacevic, Christopher Kerrane, and Elizabeth Hartnett.

NOTE THE FOURTH AMENDMENT AND THE CONSTITUTIONALITY OF DRUG TESTING IN THE WORKPLACE: ASSESSING POLICY AND PRACTICE Valeria Venturini*

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The surveilling of the human body has become increasingly common in postmodern American society despite the privacy protections guaranteed to citizens under the Fourth Amendment of the U.S. Constitution. On a national level, the U.S. Supreme Court protects employees from the demands of employment-related drug screens of federally illicit drugs. This is seen in Chandler v. Miller (1997). Protecting employees from invasive drug testing has both positive and negative effects on the working environment and employee productivity. Drug testing in the workplace is sometimes necessary for safety, but at other times it is not necessary and seeks to give a moral value judgment to candidates and employees. This Note will analyze legal precedent in the lower courts, including National Treasury Employees Union v. United States Customs Service (1994) and Williams v. United Parcel Service (2008), to argue that drug screening in the workplace ought to remain conditional and specific to certain kinds of work, but that this practice should not be abused by a company or the government. Violating privacy of the individual should not be a consequence of reasonable pre-employment drug screening. The Note also stresses that since the argument for drug screening is to aid those afflicted with substance abuse problems, drug screening should do what it purports to do. Therefore, the Note examines how drug-testing protocols should be changed to increase effectiveness as well as respect the privacy of private companies and individual employees as stipulated in the Fourth Amendment. Ultimately, the Note posits that, unless absolutely necessary, drug testing in the workplace ought to be avoided. * B.S. Candidate for Psychology and Anthropology, Fordham College at Rose Hill, Class of 2021. Inspiration for this Note comes from my interests in psychology and the criminal justice system, as well as my own experience undergoing a urinalysis drug screening as a condition for employment. Writing for the Fordham Undergraduate Law Review has taught me a variety of skills that I will take into my future professional endeavors. I would like to thank everyone at the Fordham Undergraduate Law Review for their assistance with this Note and the opportunity to publish legal writing as an undergraduate student. I am also extremely grateful to my parents for their involvement with my professional growth and for their enduring love and support. 305

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I. INTRODUCTION ..........................................................................................66 II. THE FOURTH AMENDMENT.......................................................................67 III. CHANDLER V. MILLER (1997) ...................................................................67 IV. THE EFFECTS OF DRUG TESTING IN THE WORKPLACE ............................69 A. Positive Effects .................................................................................69 B. Negative Effects ................................................................................71 V. CONCLUSION ............................................................................................72 I. INTRODUCTION Bodily surveillance comes in many forms in the twenty-first century United States; some are barred by the Fourth Amendment to the U.S. Constitution. Fast and inexpensive urinalysis drug screening became available in the early 1980s and, since then, it has been used by many employers to help boost productivity by identifying drug users.306 In the case of drug testing as a condition of employment, the permissibility of such tests is conditional, and justifiably so. Drug testing is often used as a way for employers to make a moral judgment about a candidate, although it is often branded as a way to deter crime, get substance abusers the help they need, or ensure the safety of others and the productivity of the team.307 Despite these justifications, and other reasons employers may drug test a prospective employee, the true purposes for these drug tests do not always align with what is claimed. For this reason, guidelines for testing for illicit drugs in the United States ought to be changed to reflect these values, as it is inevitable that illicit substances are present in society. This conversation becomes increasingly more complicated as some illicit drugs now become legal, but that will not be discussed in detail in this Note. In assessing three court cases, Chandler v. Miller (1997), National Treasury Employees Union v. United States Customs Service (1994), and Williams v. United Parcel Service (2008), this Note engages in analysis of drug testing, an individual’s Fourth Amendment right against unreasonable searches and seizures, and the importance of privacy to the individual. The Note also considers what drug testing means to employers

Chandler v. Miller, 520 U.S. 305 (1997). Joseph G. Rosse, The Deterrent Value of Drug Integrity Testing, 10 Journal of Business and Psychology 477, 478, 484 (1996). 306 307

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who use them and how drug testing can be better utilized to benefit society, while still comporting with the Fourth Amendment. II. THE FOURTH AMENDMENT The Fourth Amendment holds that the right of the people to “be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”308 The Amendment’s purpose is to protect the individual from being subjected to unreasonable invasions of privacy, which may harm the individual in a legal setting. To encroach on this right unreasonably is unconstitutional. In other words, the government or another entity may not invade a citizen’s private security without sufficient reason and the sanction of the court. Numerous Fourth Amendment cases have examined whether preemployment drug screening is always an invasion of privacy.309 Current statutes and precedent highlight certain instances in which drug testing as a condition of employment is warranted, and also situations in which it is inappropriate to subject an individual to such testing. III. CHANDLER V. MILLER (1997) A 1990 Georgia statute required political candidates to pass a urinalysis to qualify for running for nomination or election for a state office in Georgia.310 This test was designed to detect marijuana, cocaine, opiates, amphetamines, and phencyclidines, all of which were illegal in every state in the United States at the time.311 Any candidate could obtain a urinalysis test from their own physician or at a state-approved laboratory.312 Chandler v. Miller arose out of an issue in 1994 when three potential candidates refused to take the test on the grounds that it violated their Fourth Amendment

U.S. CONST. amend. IV. E.g., Chandler, 520 U.S. at 308. 310 Id. at 309. 311 Id. at 310. 312 Id. 308 309

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rights.313 However, the District Court for the Northern District of Georgia denied the candidates’ request for declaratory and injunctive relief in regards to their claims about the statute.314 In the end, the three candidates did comply with the law and received clearance to run for office in the 1994 election.315 The case was appealed to the Eleventh Circuit Court of Appeals, which affirmed that the “state’s interests outweighed the privacy intrusion caused by the statute’s required certification.”316 The candidates then appealed to the US Supreme Court, which granted certiorari and reversed the Eleventh Circuit’s ruling in an 8-1 decision. The Court held that since the statute’s drug-testing requirement was not within the strict boundaries of constitutionally permissible suspicion-less searches under the Fourth Amendment, requiring candidates to pass a drug test to run for state office is unconstitutional.317 To his dissent, however, Chief Justice Rehnquist claimed that the urinalysis test was reasonable under the Fourth Amendment.318 Yet there are two concepts that are loopholes in adhering to the Fourth Amendment’s constitutionally permissible suspicion-less searches and special conditions. These play a role in Chandler. In this case, there was no individualized suspicion that warranted a drug test, as is required by law.319 The state also failed to identify the special conditions that justified this test, which is not necessarily physically invasive, but still can be an invasion of privacy.320 Another reason this case was reversed was because the statute did not aim to deter drug related crimes.321 Based on this fact, it is clear that existing drug testing laws must be changed. If the laws are intended to detect and deter illegal drug activity, then they should be used in ways that achieves these goals, rather than as a secondary and unnecessary step in situations such as obtaining employment. In addition, potential candidates could temporarily refrain from drug use in order to receive a negative result,322 showing another flaw in the drug testing protocol that should be corrected. The precedent set 313

Id. Id. at 311. 315 Chandler v. Miller, 73 F.3d 1543 (1996). 316 Chandler, 520 U.S. at 312. 317 Id. at 313. 318 Id. at 314. 319 Id. 320 Id. 321 Id. 322 Id. 314

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by the Supreme Court in Chandler is reasonable since individual privacy is of the utmost importance and because it is the role of laws to protect the individual from such abuses of power when there is not any special circumstance that would require the individual to forfeit such a constitutional protection. This is a delicate balance to achieve, but the ability to protect oneself from unreasonable intervention from outside entities is essential in protecting one’s right to privacy in the United States. IV. THE EFFECTS OF DRUG TESTING IN THE WORKPLACE The Supreme Court holds that while the Fourth Amendment protects citizens against unreasonable searches and seizures without individualized suspicion, there are exceptions.323 The candidates who were the plaintiffs in Chandler were originally required to test negative for illegal drugs in a urine sample.324 The lower courts deemed the drug testing requirement constitutional.325 However, the Supreme Court held that candidates running for state offices cannot be subjected to drug screens because elected officials do not perform high-risk and safety sensitive tasks; therefore, these types of jobs cannot justify the invasion of privacy urinalysis drug screening imposes on an individual.326 However, as seen in National Treasury Employees Union v. United States Customs Service and Williams v. UPS, there are exceptions to the Chandler precedent.327 Therefore, the law is not always consistent in the types of situations in which drug testing is permissible under the Fourth Amendment. In addition, there are some negative effects to using drug tests in the workplace, for the organization that ought to be considered even where the Fourth Amendment is utilized correctly as written and interpreted. A. Positive Effects In 1994, the 12th Circuit Court of the District of Columbia ruled in favor of the United States Customs Service, stating that employees should be

U.S. CONST. amend. IV. Id. 325 E.g., Chandler, 73 F.3d. 326 Chandler, 520 U.S. 327 National Treasury Employees Union v. United States Customs Serv., 27 F.3d 623 (D.C. Cir. 1994); Williams v. UPS, 527 F.3d 1135 (10th Cir. 2008). 323 324

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subject to drug testing because of their work responsibilities.328 Employees who are privy to sensitive information were required to undergo drug screening and produce a negative test.329 The goal was to eliminate any potential conflicts of interest as these workers deal with imports at Customs.330 The federal government, and especially the United States Customs Service, has an employee policy that bars employees from off-duty drug use to avoid the dangers of bribery and blackmail.331 The court decided that the goal of curbing illegal drug activities was reasonable to allow the government to intrude upon employee privacy.332 Therefore, Customs employees should expect their privacy to be violated through the use of drug screens because of the nature of their job, and because such a violation is constitutional under the Fourth Amendment.333 Fourteen years later, in Williams v. UPS, the Tenth Circuit ruled in favor of an Oklahoma employer, affirming that the goal of policing the use of drugs supersedes the need for individual suspicion for drug screening and is therefore constitutional.334 Under the Omnibus Transportation Employee Testing Act of 1991, employees in safety-sensitive positions in transportation industries are required to undergo drug and alcohol testing.335 Such testing is federally mandated and intended to protect employee privacy.336 These conditional uses of drug testing are used in truly sensitive cases. Employees holding such sensitive roles can reasonably understand the necessity for such measures due to the nature of their job duties. The importance of the risk and safety concerns override an employee’s ability to privacy concerns against searches like this, making them reasonable in the eyes of the courts. In this instance, the Fourth Amendment is used efficiently and effectively and ought to be used in this manner in other situations. This is because, in some cases, it is mutually beneficial for both the employee and employer to have drug testing.

See National Treasury Employees Union, 27 F.3d at 624. Id. 330 Id. at 628. 331 Id. at 629. 332 Id. 333 Id. 334 Williams, 527 F.3d. 335 Id. 336 Id. 328 329

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B. Negative Effects Despite these court decisions, drug testing in the workplace has yet to produce conclusive results on their effectiveness within organizations.337 Employees generally believe that drug screening in the workplace is invasive and unfair, which in turn may negatively influence their attitudes and their work productivity.338 For example, “random drug testing represents greater threat to employee’s privacy interest than does mandatory testing because of unsettling show of authority that may be associated with unexpected intrusions on privacy.”339 Finally, the intrusion into the private life of one employee is a threat to many employees who do not wish to undergo these types of tests.340 Whether the drug screen is acceptable under the Fourth Amendment or not, perception of drug tests and their use in the workplace as a method of surveillance may negatively influence the individual being surveilled, their health, safety and productivity, as well as the health, safety and productivity of the organization as an extension of the employee. Because employers seem to utilize drug screening as a solution to the moral argument against drugs, drug testing does not combat drug abuse because a person identified as a user of drugs is not, in most cases, offered education, rehabilitation or counseling.341 These tests cannot determine drug abuse or dependency, so the tests do little to actually curb drug use in an efficient and healthy manner.342 This is significant because deterring substance abuse is one of the main proposed goals of drug testing in the workplace. Instead, many employers deny employment to those individuals or aid in ending one’s illicit substance use. For these reasons, drug testing ought to be reevaluated by the legal system and by business organizations. Drug screenings for the assessment of a job applicant, rather than a current employee is also an integral part of this issue. Prospective employees must conform to the organization as a condition of employment, rather than conforming because they are already a part of the organization. It has been

Debra R. Comer, A Case Against Workplace Drug Testing, 5 Organization Science 259 (1994). 338 Id. 339 National Treasury Employees Union, 27 F.3d. 340 Corner, supra note 337. 341 Id. 342 Id. 337

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found that job applicants may be offended by the need for them to undergo a drug test as a condition of employment and may therefore be less likely to apply or accept a job offer with an organization that has such a requirement.343 In addition, applicants who accept a job offer and are subjected to drug screening have been found to be less loyal and less productive employees.344 Also, when job applicants and employees are dissatisfied with employment procedures, this can have greater long-term negative effects on the company’s profitability and recruiting efforts.345 Studies show that both drug user and non-drug user applicants view drug testing negatively, though drug users demonstrate greater negativity for these tests.346 Consequently, it can be argued that pre-employment drug testing may do more harm than good. When an employer seeks to deter certain practices, they judge the applicant and in turn, the applicant judges the employer. As noted, drug screening may be detrimental to the general functioning of an organization and its ability to produce profits. Thus, scrutinizing job applicants comes with both costs and benefits that the organization must consider based on its specific needs.347 In many instances, drug testing is allowed under the Fourth Amendment and ought to be used because it would be beneficial to both the individual and the employer; however, in other instances, though allowed under the Fourth Amendment, drug screening may be less advantageous than originally believed. V. CONCLUSION While pre-employment drug screening is often ineffective, unnecessarily invasive, and unsuccessful at achieving its unsupported goals of decreasing absenteeism, turnover rates, accidents, and medical errors, it does not always violate employee privacy. There are certain circumstances where an employee’s disclosure of their lifestyle outside of work and health conditions is needed by the employer. This Note has argued that these are acceptable uses of workplace drug testing despite these types of tests not being indicative

Rosse, supra note 307. Id. 345 Id. 346 Id. 347 Id. 343 344

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of an employee’s intoxication or ability to perform at work and they do not seem to deter substance abuse as they purport to do. Although only partially successful at what they intend to measure, pre-employment drug screening is not always unconstitutional under the Fourth Amendment. Under special circumstances, drug testing is necessary for the job to be done correctly and safely. This Note encourages citizens to know their rights, for companies that drug test to protect the privacy of their employees, and for these companies to be more effective in measuring what they purport to measure and help those with substance abuse problems to maintain safe and productive work environments. Workplace drug testing is conditional, and therefore is sometimes permissible under the Fourth Amendment; however, drug laws and consequently drug testing in the workplace falls short of curbing illicit drug use and helping substance users. In addition, new legislation that decriminalizes or legalizes illicit drugs on a state-by-state basis, will likely complicate matters of pre-employment drug testing. This is because unless there is a federal law that decriminalizes or legalizes an illicit substance, private companies may still be able to choose the drugs they test for and may even not allow prospective employees to pass a drug test even though that drug is legal in the state in which they operate. Drug testing in the workplace, and its constitutionality in specific instances is therefore a pertinent issue that will continue to generate controversy in the future. To conclude, this Note concurs with the precedent set in Chandler v. Miller that an invasion of privacy such as one through a urinalysis drug screening as a condition of running for public office, is unconstitutional. However, the Note also sympathizes with the precedent set by National Treasury Employees Union v. United States Customs Service, because drug testing was utilized to protect national security from the potential importation of illicit substances and as a way to protect the individual employee from being exploited because of a conflict of interest on the job. Finally, the Note concurs with Williams v. UPS in that individuals in sensitive roles ought to be subjected to appropriate drug screenings for their safety and the safety of those whom they serve while at work, while acknowledging that such testing is an invasion of the privacy of the employees, though deemed necessary for the job. The nuances seen in these three rulings justify the use of drug testing in an appropriate manner, consistent with the Fourth Amendment. *** This Note was edited by Christopher Kerrane and Margarita McCoy.

NOTE EXAMINING FEDERAL GOVERNMENTAL ROLE IN EDUCATION Brian Inguanti*

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Federal involvement public education in the United States has steadily increased since the passage of the Elementary and Secondary Education Act of 1965 (ESEA), which was intended to serve as a means to equalize funding between school districts and provide equal opportunity for children of all backgrounds in the country. The ESEA has since evolved into a vehicle for the federal government to exert more control over public education, such as formulating curriculums for schools to follow, such as No Child Left Behind and Every Student Succeeds Act. Federal involvement in public education, particularly in curricula, has sparked a decades-long debate: how large of a role should the federal government have in public school education? Whereas some advocate for a minimal federal role in education because of states’ rights, others believe the federal government should assume a greater role to advance equal opportunity for students of all backgrounds. This Note seeks to answer the following question: does current federal involvement in education hold jurisprudential justification, or does the government need to scale back its involvement in light of the Tenth Amendment? Through a thorough examination of the origins of federal involvement in education and existing laws and court cases, it is clear that the answer lies somewhere between the right and left side of the political aisle. In other words, some degree of federal involvement is necessary to equalize funding and ensure every citizen has access to an education, implementing a nation-wide standard curriculum is a federal encroachment upon states’ rights and is in conflict with the purpose of the original Elementary and Secondary Education Act of 1965.

* B.A. Candidate for Political Science (Major) and Economics (Minor), Fordham College at Rose Hill, Class of 2024. I thank the Fordham Undergraduate Law Review for the privilege to write for them. Special thanks go to Sydney Beck, Elizabeth Hartnett, Caroline Morris, Nicholas Suit, and the rest of the Editorial Board for their assistance and support. Without the Editorial Board’s help, the publication of this Note would not be possible.

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I. INTRODUCTION ..........................................................................................75 II. ORIGINS OF FEDERAL INVOLVEMENT IN PUBLIC EDUCATION ...................76 A. Contextual Information: Standards Versus Curriculum ..................76 B. The Elementary and Secondary Education Act of 1965 ...................76 C. Excellence in Education ...................................................................78 D. The Education Excellence Act of 1989 ............................................78 E. Goals 2000 and Improving America’s Schools Act ..........................79 F. No Child Left Behind ........................................................................79 G. Race to the Top and Every Student Succeeds Act ............................80 H. How the Original ESEA 1965 Compares to Today..........................81 III. THE PROGRESSIVE ARGUMENT IN FAVOR OF FEDERAL INVOLVEMENT IN EDUCATION............................................................................................81 IV. THE CONSERVATIVE ARGUMENT AGAINST FEDERAL INVOLVEMENT IN EDUCATION............................................................................................83 V. COURT CASES REGARDING FEDERAL INVOLVEMENT IN EDUCATION .......86 A. San Antonio Independent School District v. Rodriguez ..................87 B. Cook v. Raimondo ............................................................................88 VI. CONCLUSION: ANSWERING THE QUESTION OF FEDERAL INVOLVEMENT IN THE UNITED STATES ..............................................................................89 I. INTRODUCTION The Tenth Amendment of the U.S. Constitution is included in the Bill of Rights to limit the power of the federal government. It guaranteed a separation of powers between the federal government and state governments, meaning that states could conduct their affairs semi-independently from the federal government. This idea relates to public education in that the federal government is not explicitly granted the right to form education policy for the United States. The Tenth Amendment means the states are responsible for formulating and implementing their own system of education. A larger concept is introduced in this Note: the debate over the authority of the federal government in relation to the powers of state governments. This Note begins with an examination of federal educational policy, from the Elementary and Secondary Education Act of 1964 to the most recent legislation, the Every Student Succeeds Act. This Note then explores the arguments of those in favor of greater federal involvement versus lesser federal involvement in education, along with an examination of court cases that provide precedent for how state and federal governments should navigate

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education policy. This Note argues that while federal involvement is too great at present since it concerns itself with curriculum, some federal presence is needed to maintain equality among school districts in the United States. Thus, in the future, education policy should be directed more towards state responsibility under the Tenth Amendment and the intentions of the original Elementary and Secondary Education Act of 1965. II. ORIGINS OF FEDERAL INVOLVEMENT IN PUBLIC EDUCATION A. Contextual Information: Standards Versus Curriculum Prior to presenting information and the arguments of this Note, the differences between standards and curriculum should be explained. Standards are expectations of what students need to learn by the end of the school year, whereas a curriculum is an in-depth plan on what specifically will be taught.349 For example, standards would define that all students must learn addition and subtraction by the end of the school year, but curriculum would design daily plans for teachers to implement these standards. B. The Elementary and Secondary Education Act of 1965 President Lyndon B. Johnson’s primary purpose in signing the Elementary and Secondary Education Act of 1965 (ESEA) was to invigorate with the “War on Poverty” at time in which 20% of the United States was below the poverty line.350 In addition to a large swath of poverty, the disparity between socioeconomic classes was widening, and not just in education.351 Prior to the ESEA, only wealthier children had access to high-quality education.352 President Johnson’s administration believed that if all students had access to the same quality education, the disparity in socioeconomic class Kristy Campbell, Common Core Fact of the Day, EXCELINED (June 3, 2013), https://excelined.org/2013/06/03/common-core-fact-of-the-day-standards-vcurriculum/#:~:text=Standards%20define%20what%20is%20to,the%20end%20of%20the %20year. 350 Aaron Cooley, War on Poverty, ENCYCLOPEDIA BRITANNICA (Feb. 18, 2020), www.britannica.com/topic/War-on-Poverty. 351 The Editors of Encyclopedia Britannica, Great Society, ENCYCLOPEDIA BRITANNICA (Feb. 5, 2020), https://www.britannica.com/event/Great-Society#ref1278327. 352 Id. 349

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would begin to narrow, and economically disadvantaged children would have a vehicle to escape poverty.353 The 1965 Elementary and Secondary Education Act consisted of six parts. The first and largest financial component of the ESEA was Title I, in which funds were allocated to the lowest-income areas of the country.354 This was the key section of the ESEA that President Johnson envisioned as helping to wage the War on Poverty. Federal funding would elevate economically depressed schools and school districts, and level the playing field to where all students in public schools have access to the same level of school expenditure. Title II was used to give funds to school libraries so they could be supplied with up to up-to-date textbooks and other resources that assist in the learning process.355 Title III supplemented educational centers and services, while Title IV funded educational research and training to improve the existing system of schooling in the United States.356 Title V authorized the states’ departments of education to provide more funding, which then resulted in a greater state influence on the local scene.357 Title VI is significant, as it held that nothing in the ESEA would allow the federal government to impose curriculum choices for schools to abide by.358 The significance of this Act is clear in the cataclysmic impact it in permanently changing the role of the federal government in education. The ESEA must be reauthorized every several years, which means that each president will institute their education policy through a reformulated reauthorization of the Elementary and Secondary Education Act. It can be seen in the original Act that the federal government intended to only involve itself with funding; President Johnson explicitly stated that the curriculum would not be altered. This shows that in subsequent reauthorizations by each administration went beyond the original purpose of the ESEA. While future administrations were technically able to implement their policies, these policy changes challenged the idea of state control over education.

353

Id. David A. Gamson et al., The Elementary and Secondary Education Act at Fifty: Aspirations, Effects, and Limitations, 1 THE RUSSELL SAGE FOUNDATION JOURNAL OF THE SOCIAL SCIENCES 1 (2015). 355 The Elementary and Secondary Education Act of 1965, 20 U.S.C. § 2001. 356 Id. §§ 3001, 4001. 357 Id. § 5001. 358 Id. § 6001. 354

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C. Excellence in Education During Ronald Reagan’s presidency, a major influence on his education policy was the report entitled “A Nation at Risk,” which studied major trends regarding the current system of American schooling and the fact that students were failing to meet common standards.359 To rectify this, the Reagan Administration implemented the “Excellence in Education” initiative, a movement that brought blame to the federal government for what many regarded as failing public education.360 “Excellence in Education” enabled states to exert more control over their schools by implementing improved standards, rather than the federal government driving the implementation.361 While unilaterally raising standards do not automatically equate to a better education,362 it was the most concurrent policy to the Constitution and Bill of Rights. After schools had raised their standards, only minimal progress was made in test scores. To raise test scores, schools must raise standards as well as increase the resources available to classroom teachers. D. The Education Excellence Act of 1989 President George H.W. Bush was the first to implement standards-based reforms: the federal government implemented increased standards of school achievement, believing it would improve education.363 This would carry forth President Reagan’s education policy, since educational reforms would be lateral for every state. President Bush’s reauthorization of the Elementary and Secondary Education Act, the Education Excellence Act of 1989, was uninspired since the chief reform was a Presidential Merit System for the topperforming schools.364 While President Bush did not ultimately advance education policy in the United States, his contribution was significant as it

National Commission on Excellence in Education, A Nation at Risk, 9-13, 1983. Jesse H. Rhodes, An Education in Politics: The Origins and Evolution of No Child Left Behind, 41 (2012). 361 Id. at 43. 362 Id. at 62. 363 Id. at 75. 364 Id. 359 360

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opened the doors for the federal government to involve itself in standard and curriculum decisions of local schools. E. Goals 2000 and Improving America’s Schools Act President Bill Clinton took a two-pronged approach to education: Goals 2000 and the Improving America’s Schools Act. Improving America’s Schools Act was President Clinton’s reauthorization of the ESEA.365 This Act prioritized educational equity and worked to maintain primary ESEA programs, in addition to stipulating more standards-based reforms.366 Goals 2000, also known as the Educate America Act, offered grants to school districts willing to adopt the new reforms and implement new standards and steps for how to reach them.367 These two acts are significant in the history of federal involvement in education because President Clinton’s policies inevitably set the foundation for President George W. Bush’s signature educational initiative, the No Child Left Behind Act, which was a more significant and far-reaching law that helped to reshape public education in the United States as we know it today. F. No Child Left Behind President George W. Bush’s No Child Left Behind Act, which was his administration’s reauthorization of the Elementary and Secondary Education Act, was essentially a more enhanced version of President Clinton’s Improving America’s Schools Act. While President Clinton had to grant much responsibility concerning standards to the states in order to pass his legislation, President Bush was able to pass the bill with bipartisan support and establish greater federal control.368

Id. at 96. Id. at 123. 367 Clinton Presidential Library, Goals 2000 and ESEA, CLINTON DIGITAL LIBRARY, https://clinton.presidentiallibraries.us/exhibits/show/education-reform/goals-esea. 368 Richard W. Riley, The Improving America’s Schools Act of 1994 - Reauthorization of the Elementary and Secondary Education Act, U.S. DEPARTMENT OF EDUCATION (Sept. 1995), https://www2.ed.gov; Rhodes, supra note 13, at 149. 365 366

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No Child Left Behind transformed schools to be specialized in stronger standards and increased testing.369 Teachers and students would have standards presented to them, such as having students reach a certain proficiency in math, for example, and then they would be tested on those standards. If schools did not meet these requirements, there was a progressive system of accountability. If a school initially struggled, the state and federal departments of education were supposed to intervene. Then, if no progress is subsequently made, students are allowed to transfer, teachers are hired or fired, curriculum is altered by the state, and the state then decides on spending, using the funds in whatever way it sees fit to improve test scores. The school would then be converted into a charter school if none of those previous solutions work.370 As noted, the No Child Left Behind Act was an inflection point for the federal government’s involvement in American education. The Act allowed the federal government to exert even greater control over local schools. G. Race to the Top and Every Student Succeeds Act President Barack Obama’s Race to the Top initiative was to have schools develop and adopt better standards, create more adequate data systems to track student achievement, and support teachers and administrators by no longer evaluating their performance by student test scores.371 Similar to President Bush’s act, Race to the Top was rooted in federal intervention. President Obama’s reauthorization of ESEA, the Every Student Succeeds Act, which fully mandated a federal presence in American education on the local level. States were instructed to select an educational goal from a list the federal government prepared. States would know if the goals were met

369

Id. at 157. FindLaw Legal Writers and Editors, No Child Left Behind Act and Teacher Accountability, FINDLAW (June 20, 2016), www.findlaw.com/education/curriculumstandards-school-funding/no-child-left-behind-act-and-teacher-accountability.html. 371 Obama White House, Race to the Top, THE WHITE HOUSE OF PRESIDENT BARACK OBAMA, https://obamawhitehouse.archives.gov/issues/education/k-12/race-to-the-top. 370

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through the yearly testing of students. If the goals were not met, the state would then intervene in the school system.372 President Obama engineered a permanent and significant federal role in education through Race to the Top and Every Students Succeeds Act. As more legislation is passed in line with this kind of policy, it becomes more difficult to reverse those decisions. President Obama managed to accomplish this based on the work of Presidents Clinton and George W. Bush. H. How the Original ESEA 1965 Compares to Today When comparing the original Elementary and Secondary Education Act of 1965 to today, it can be observed that the federal government took a much larger role in education than originally intended. Title VI of ESEA states that nothing in the original law would allow curriculum to be decided.373 That section was breached when administrations started withholding funds to schools that did not adopt the new standards and legislation.374 The question needs to be asked: would the original 1965 ESEA be the best solution for federal government intervention in education today? Most likely not because while it would help in facilitating the challenge of variating quality in education among school districts through federal funding, states would have no input in deciding what to teach their students. As it will be developed later in this Note, national standards are helpful to school districts, while standard curriculums often result in a poor performance. Special education is also not fully developed in the ESEA. III. THE PROGRESSIVE ARGUMENT IN FAVOR OF FEDERAL INVOLVEMENT IN EDUCATION Educational progressives refer to individuals who advocate for more federal involvement and programs in American public school. Their constitutional justification is that the federal government is eligible to involve

Education Week, The Every Student Succeeds Act: Explained, EDUCATION WEEK (Dec. 8, 2015), https://www.ride.ri.gov/Portals/0/Uploads/Documents/Information-andAccountability-User-FriendlyData/ESSA/CoP/Education_Week_Every_Student_Succeeds_Act_Explained.pdf. 373 The Elementary and Secondary Education Act of 1965, 20 U.S.C. § 6001. 374 Rhodes, supra note 360, at 176. 372

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itself because they are responsible “to provide for… the general welfare” of Americans under Article I, Section 8 of the U.S. Constitution.375 From a logistical point of view, educational progressives favor greater federal involvement in education because they believe it more effectively provides equity and equality in that all students are held to the same standards, curriculum, funding, and therefore will have equal opportunity in life after completing their education.376 The General Welfare Clause is as follows: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.”377 This clause enables the federal government to enact legislation to facilitate the machinery of government.378 For a law to be within the scope of the General Welfare Clause, it must be necessary, proper, and carry into law some other federal power.379 From the vantage point of previous administrations’ education laws, it can be seen that all three requirements are satisfied. It can be easily argued that public schooling is necessary in the United States because citizens must be educated to serve on jury duty, understand new laws, and pay taxes. Deeming a law “proper” is unclear as to what it exactly means; it used to be grouped with “necessary,” but it is now referred to as propriety,380 which signifies whether the federal government is violating a state or local prerogative. A weakness in the constitutional justification of federal involvement in education can be observed: education is intended to be a state or local right, hence it falls under the Tenth Amendment, so the aim may be that federal involvement in education was not intended in the origins of the country. Lastly, the law must carry into execution some other federal power, where federal involvement is provided by all education laws studied previously in this Note. The concept of general welfare relating to education can be interpreted to mean that to provide for the general welfare or creating an

U.S. CONST. art I, § 8, cl. 1. Linda Darling-Hammond, The Flat World and Education, 28 (2010). 377 Id. 378 Gary Lawson & Neil S. Siegel, Common Interpretation: Necessary and Proper Clause, NATIONAL CONSTITUTION CENTER, https://constitutioncenter.org/interactiveconstitution/interpretation/article-i/clauses/754. 379 Id. 380 Id. 375 376

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educational policy with the hope of improving the country through the formation of intelligent and informed voting citizens. An additional argument in favor of federal involvement is that current education policy in the United States does require a federal presence. The No Child Left Behind, the Race to the Top, and Every Student Succeeds Act were all designed for a top-down approach to education. For a new administration to bolster state and local responsibility for education and curriculum, it must first reverse previous legislation in its renewal of ESEA, though this is becoming increasingly difficult to accomplish. Without federal funding, the infrastructure created by these laws would collapse. Aside from legal justifications, there are the logistical perspectives of education that progressives argue only the federal level can attain. A federal role in education is necessary for establishing equity among all socioeconomic classes of Americans. While knowledge and technology are expanding, so is inequality among education for all socioeconomic groups of America.381 There exists what is termed the “Opportunity Gap,” an unequal allocation of resources because of poverty and a lack of social resources, limited early learning opportunities, an increasing resegregation of schools, marginally qualified teachers, lack of equal access to high-quality curriculum, which all contribute disparate learning outcomes.382 The end goal for progressives is to authorize, through legislation, equal funding and a common curriculum to close the gaps in opportunity. This goal is in progress given the previous two decades of education legislation. IV. THE CONSERVATIVE ARGUMENT AGAINST FEDERAL INVOLVEMENT IN EDUCATION Educational conservatives advocate for a minimal federal role in education. Their argument primarily focuses on the Tenth Amendment in the Constitution, which states that “the powers not delegated to the United States by the Constitutions, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”383 According to conservatives, the federal government does not have the primary responsibility in education, as defined by the Constitution. Darling-Hammond, supra note 376, at 66. Id. 383 U.S. CONST. amend. X. 381 382

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Accordingly, the federal government does not have the ability to involve itself in public education other than possibly by means of the Elastic Clause, which grants Congress the power to enact laws necessary and proper to carry out its enumerated powers.384 Even so, using the Elastic Clause to justify federal involvement requires specific legal justification to make the point. It could just as easily be argued that to provide for the general welfare of the United States,385 individual states must be empowered to carry out their responsibilities without interference from the federal government. After all, the reauthorizations of the Elementary and Secondary Education Act intrude upon a state’s right to formulate educational policy since regulations and requirements are set at the national level, with the penalty for noncompliance being the withholding of funds. It is a persuasive argument to hold that education belongs to the state in light of the Tenth Amendment. A potential vulnerability in this argument is that the Amendment does not specifically charge states with establishing a system of education.386 However, if states are not tasked with this responsibility, what entity would then bear this responsibility? Perhaps this was beyond the scope of what the Founding Fathers intended government to provide. Nevertheless, this constitutional omission further supports the notion that a balance of federal and state activity in education is required, since those in favor/against federal involvement both have constitutional backing for their argument. The ability to determine educational policy for the people is certainly a power, which from the Tenth Amendment, was specifically not intended to be delegated to the federal government. In addition, the states were not prohibited from regulating education. While education is not mentioned in the Bill of Rights, it must be assumed that this is not a federal power, nor is it prohibited to the states. Therefore, the Tenth Amendment has been interpreted by the courts as making education the responsibility of the states and local governments, since the Tenth Amendment includes powers to the people.387 An argument can be made that the federal government has a role in education and that citizens decide policy through their power to vote. However, this argument breaks down because voting is not subject to the Tenth Amendment; the principle right to vote is established elsewhere in the U.S. CONST. art. I, § 8, cl. 18. U.S. CONST. art. I, § 8, cl. 1. 386 U.S. CONST. amend. X. 387 Id. 384 385

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Constitution. The Tenth Amendment’s “powers” it grants to states are those such as traffic laws or the ability to collect taxes. Those opposed to extensive federal intervention in education would argue a power reserved to states is the ability to design a system of public schooling. The arguments of educational conservatives are not limited to constitutional interpretation. There is both analytical and substantive evidence that demonstrates that increased federal engagement does not equal better education. Even after the No Child Left Behind Act and Every Student Succeeds Act, the inequalities have continued to worsen. The current curriculum in public elementary and secondary schools is extremely factbased, meaning a student’s success is predicated on memorizing large amounts of information. As testing increases, drop-out rates follow suit.388 These dropouts tend to be more associated with lower incomes, meaning that these policies geared towards reducing educational inequality through federal involvement in curriculum have only seemed to worsen the opportunity gap. When progress is made, it is minimal and, many argue, not worth the increased funding and regulation.389 The question of equal funding draws one major question: will it account for the cost of living? As in, will funding be proportionalized so every school district in America gets the same amount of support? If every school received the same amount of money, inequality would continue to thrive since districts in regions of higher tax bases would be able to provide their students with more resources than regions with a lower tax base. In addition, critics of increased federal involvement in education argue that the educational materials disseminated through the Common Core undermine the freedom of teachers. One English-language arts lesson plan from New York, for example, lists the exact assignment for the students to accomplish, along with questions to be asked by the teacher, and worksheets

Darling-Hammond, supra note 376, at 70. Naomi Chudowsky et al., Answering the Question that Matters Most: Has Student Achievement Increased since No Child Left Behind?, CENTER ON EDUCATION POLICY (June 2007), https://eric.ed.gov/?q=Answering+the+Question+That+Matters+Most%3a+Has+Student++ Achievement+Increased+Since+No+Child+Left+Behind%3f&id=ED520272. 388 389

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to be completed.390 It is curious as to why teachers go to school, earn a graduate degree, and complete a certification process just to follow a script? Educational conservatives argue that teachers should do what they are trained to do, which is to teach. Part of the teaching process surely is creating lesson plans that are original and engaging for students. Also with regard to funding, how is it equitable that schools with higher test scores receive more funding? The practice of only rewarding those who do well appears to have it backwards; the federal government should be assisting those who need more help by offering additional funding. This policy was seen with Obama’s Race to the Top initiative, where schools competed with one another for extra funding based on student performance.391 While quality in education can be controlled, higher income families will always be able to afford to send their children to private schools or hire tutors. No amount of federal legislation can change that and while it can be argued that federal involvement can improve the resources of schools in low-income areas, these resources will be dissipated by the ineffective standards and testing. In previous education legislation, like that of President Obama and Bush, resources and funding are always predicted on adopting new standards. V. COURT CASES REGARDING FEDERAL INVOLVEMENT IN EDUCATION Before the cases are discussed, the Fourteenth Amendment should be examined to provide the reader with enough context to understand the background to the cases. Section I of the Fourteenth Amendment is as follows: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or

Diane August & Diane Staehr Fenner, Lesson Exemplar for English Language Learners/Multilingual Language Learners: Grade 9 Module 1, Unit 1 Lesson 1: St Lucy’s Home for Girls Raised by Wolves, NEW YORK STATE EDUCATION DEPARTMENT (2018), https://www.engageny.org/resource/grade-9-ela-module-1-unit-1-lesson-1-lessonexemplar-ells-mlls. 391 Obama White House, supra note 371. 390

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property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.392

Many education cases involve this first section of the Fourteenth Amendment. The two cases that will be examined involve the Equal Protection Clause, meaning that every citizen must have equality under the law; no person should receive different treatment. A. San Antonio Independent School District v. Rodriguez San Antonio Independent School District v. Rodriguez (1973) was a case regarding Texas elementary and secondary schools’ reliance on state and local funding. Demetrio Rodriguez, the representative of the less-affluent families of the San Antonio independent school district, argued that schools in the poorer areas offered worse education to their students because there was less funding.393 Since local property taxes in those areas were lower, the schools received less funding than their wealthier counterparts, which had higher property taxes. The more affluent schools with more funding could provide a higher-quality education to their students. Rodriguez challenged the Texas public education system, stating it violated the Fourteenth Amendment’s Equal Protection Clause since it did not offer equal education to all students as a result of the unequal allocation of funds.394 At the time, many other states had the same system as Texas.395 If Rodriguez won the case, it would have meant massive reform for all states in how the distribution of funds. The Supreme Court ruled for Texas and held that it was not in violation of the Fourteenth Amendment because it did not systematically discriminate, and because there is no right to an education stated in the Constitution.396 Justice Lewis F. Powell added that the Fourteenth Amendment cannot require equal opportunity regarding wealth and education.397

U.S. CONST. amend. XIV, § 1. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, (1973) (Texas was not in violation of the Fourteenth Amendment of the U.S. Constitution). 394 Id. 395 Id. 396 Id. 397 Id. 392 393

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This case is significant to the argument of this Note because it reinforces the point that education is not the primary responsibility of the federal government; education is primarily a responsibility of the states. However, the case highlights a potential issue with zero federal involvement: funding can be disproportionately allocated, resulting in unequal educational opportunity if federal funding is necessary to remediate situations like this, but a standardized national curriculum should not be attached. This case will also be important in the future because it addresses the question of if the Fourteenth Amendment includes the right to a quality education. B. Cook v. Raimondo Cook v. Raimondo came to District Court in Rhode Island when a group of students sued their school districts for failing to provide a comprehensive civics education.398 The litigants argued that the lack of such an education would fail to prepare them to be informed citizens in the United States. The students also claimed they did not have access to needed educational resources such as a library.399 The Fourteenth Amendment was used to argue that every citizen has the right to receive a proper civics education so they can contribute to the democratic processes of the United States.400 To illustrate the students’ frustration, twenty-three percent of Rhode Island students passed the civics test on the National Assessment of Educational Progress.401 With less than a quarter of students able to demonstrate a satisfactory understanding of American civics, the case was still dismissed on the grounds that education is not a right explicitly guaranteed by the Constitution, reaffirming the precedent set in San Antonio v. Rodriguez. While there is no explicit right to education found in the federal Constitution, it does not mean that it is constitutional for some students to not receive an adequate education. One of the purposes of the Constitution is to

Kevin Mahnken, Federal Judge Dismissed Rhode Island Students’ Suit for Right to Civic Education, THE 74 MILLION (Oct. 14, 2020), https://www.the74million.org/federaljudge-dismisses-rhode-island-students-suit-for-right-to-civic-education/. 399 Id. 400 Id. 401 Linda Borg, R.I. Sued Over Lack of Civics Education in Schools, PROVIDENCE JOURNAL (Dec. 5, 2019), https://www.providencejournal.com/news/20191205/ri-sued-over-lack-ofcivics-education-in-schools. 398

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restrict the federal government’s powers. This means that since education is a state and local prerogative, it is up to state and local governments to design an effective school system and curriculum for its students. However, in dismissing the case, he emphasized that Rhode Island must improve its civics education.402 According to the trial judge, the students are absolutely justified in expressing their dissatisfaction; however, federal involvement does not equate to a superior education. VI. CONCLUSION: ANSWERING THE QUESTION OF FEDERAL INVOLVEMENT IN THE UNITED STATES The question this Note presented is if the federal government should be as involved in education as it is, or if it needs to scale back its involvement in order to comply with the Tenth Amendment to the Constitution. The answer to this question lies in the middle of these two viewpoints. According to the original Elementary and Secondary Education Act of 1965 and the Constitution, the federal government is not authorized to design curricula. The documents do not enable the federal government to intervene in that dimension of education policy; the ESEA actually forbids it. That job should be left to the states and localities to determine what is best for their students according to local conditions. However, the federal government should set uniform standards for schools to follow. This means states should be informed of how their students should progress, but it is the responsibility of the individual teachers figure out how to best educate their students, rather than abiding by Department of Education designed lectures and assignments written in Washington. For example, a teacher is notified by the state that they must teach their students basic algebra. Rather than being instructed to teach lessons prepared by the Federal Department of Education, the teacher should be responsible for designing the lesson plan and figuring out a method that will be best suited for their students. This would prevent states from falling behind the others, yet, at the same time, it would allow for collaboration between teachers in school districts and would promote creativity in how the content is taught,

402

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similar to the Finnish model of education.403 This allows teachers to do what they went to school for – to teach. With respect to federal funding, educational progressives make a compelling case for remediating inequalities in funding. The primary federal role in education, in addition to setting flexible standards for the states, should be to equalize funding for all schools to ensure equity in educational opportunity. When New Jersey equalized funding for its public schools, it saw improvements in education across the socioeconomic spectrum.404 Balancing a federal role in education with the empowerment of states and localities to govern their education as they see fit while ensuring equality in funding, would best honor the purposes of the original ESEA of 1965, as well as respect the Constitution and the Tenth Amendment. *** This Note was edited by Sydney Beck, Elizabeth Hartnett, and Nicholas Suit.

Pasi Sahlberg, Education Policies for Raising Student Learning: The Finnish Approach, 22 JOURNAL OF EDUCATION POLICY 147 (2007). 404 Darling-Hammond, supra note 376, at 129. 403

NOTE WHITE-AMERICAN HETEROPATRIARCHY: A RACEGENDER ANALYSIS OF JAPANESE AMERICAN WORLD WAR II CASES April Gore*

405

In response to the 1941 bombing of Pearl Harbor and following the United States’ official entry into World War II, a series of laws targeted the liberty and rights of American citizens of Japanese descent in the United States and culminated in Executive Order 9066, which incarcerated approximately 120,000 Japanese Americans in incarceration camps. Four lawsuits were subsequently brought to the U.S. Supreme Court objecting to this treatment, and only one those four ruled in favor of the plaintiff. While it is almost universally acknowledged that racial discrimination was a deciding factor in the three unfavorable rulings, the extent to which the intersection of racial and gender identity uniquely informed each ruling is less so. Existing literature presents evidence that Japanese Americans were perceived by the white-American public to diverge from white-American heteropatriarchy, but this race-gender literature is only subsidiary in principal analyses of suspected Japanese espionage. Consolidating this race-gender evidence, this Note explores how posited positionality in relation to hegemonic heteropatriarchy informed the judicial opinions in Japanese American wartime Supreme Court cases involving the constitutional rights of Japanese Americans. I. INTRODUCTION ..........................................................................................92 II. PLAINTIFFS ...............................................................................................93 A. Minoru Yasui ....................................................................................93 B. Gordon Hirabayashi .........................................................................94

* B.A. Candidate for Sociology and International Political Economy, Fordham College at Lincoln Center, Class of 2022. Thank you to Professor Jeanne Flavin for encouraging this research and to the Editorial Board for providing a platform for this topic. This Note was written in remembrance of my grandparents, Arline Kawasaki and Jiro Miyoshi, who were incarcerated at Heart Mountain and Minidoka incarceration camps, respectively, and in recognition of Japanese American projects such as Tsuru for Solidarity that work to end carceral systems today. 405

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C. Fred Korematsu................................................................................95 D. Mitsuye Endo....................................................................................96 III. JAPANESE RACE-GENDER IN AMERICA ...................................................96 IV. RACE-GENDER ANALYSIS .......................................................................98 VI. CONCLUSION.........................................................................................100 I. INTRODUCTION The intersection of race and gender as constructs that propel violence against people of Asian descent in America was brought to the forefront of the conversation about white supremacy when a white man murdered six Asian women in March 2021406 in Atlanta amidst a recent spike in violence against Asians in America.407 Within the United States’ legal system’s long history of racial violence against people of Asian descent, the U.S. Supreme Court’s legal sanctioning of the treatment of Japanese Americans during World War II (WWII) remains recognized among “the ranks of this country’s most notorious anti-precedents—textbook cases of judicial decision-making gone wrong that jurists of all stripes vow never to repeat.”408 Still, seventyfour years passed before the Supreme Court overruled Korematsu v. United States.409 In order to better understand the relationship between social constructs and legal systems in the historic discrimination against people of Asian descent, this Note examines four Supreme Court cases, specifically regarding the wartime civil rights of Japanese Americans: Yasui v. United States (1943), Hirabayashi v. United States (1943), Korematsu v. United States (1944), and Ex parte Endo (1944). While much attention has been paid to the role of racial identity in these rulings, far less has been given to gender and the more

See Li Zhou, The Atlanta shootings can’t be divorced from racism and misogyny, VOX (2021), https://www.vox.com/22336317/atlanta-georgia-shootings-racism-misogynytargeting-asian-women. 407 See Weiyi Cai et al., Swelling Anti-Asian Violence: Who Is Being Attacked Where, N.Y. TIMES (Apr. 3, 2021), https://www.nytimes.com/interactive/2021/04/03/us/anti-asianattacks.html. 408 Neal Kumar Katyal, Trump v. Hawaii: How the Supreme Court Simultaneously Overturned and Revived Korematsu, 128 YALE L.J.F. 641, 642 (2019). 409 Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018). 406

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intersectional410 race-gender. Section II presents the plaintiffs, the Supreme Court opinions in their cases, and any arguments made addressing racial discrimination. Section III identifies major ways that race-gender has been implicated in the wartime treatment of Japanese people in the United States. Section IV analyzes the way that this identity may have informed WWII judicial rulings against and in favor of Japanese American plaintiffs. This Note extends the literature on racial discrimination against people of Japanese descent during WWII by presenting race-gender as a criterion used for the perceived safety of Japanese American plaintiffs in wartime Supreme Court cases. This Note presents compelling evidence that these rulings were not the result of one-dimensional racial discrimination, but rather of distinct assumptions about the social locations of the Japanese American plaintiffs and their white-American counterparts based on projections by mainstream white-America onto the race-gender identities of Japanese women, Japanese men, white women, and white men.411 II. PLAINTIFFS A. Minoru Yasui The first litigant to challenge the government’s discriminatory conduct in court was twenty-five-year-old Minoru Yasui, an Oregon-born lawyer.412 He deliberately sought to make his lawsuit a test case,413 and the day after curfew went into effect, a sergeant at the police station obliged his request to be arrested.414 Yasui was tried for curfew violation, and during the one-day trial, Judge James Alger Fee interrogated him about Shinto religious practices and other aspects of Japanese culture that he insisted he had neither knowledge of nor interest in.415 Yasui spent five months in the Portland Assembly Center and Minidoka camps before Judge Fee issued his guilty verdict, during which 410 See Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. CHI. LEGAL F. 139 (1989). 411 The oppression of transgender individuals during this time period prevents an analysis of their intersectional identity in this Note. 412 Roger Daniels, The Japanese American cases: The rule of law in time of war, 28. 413 Id. 414 Id. at 29 415 Id. at 30-1.

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time three more Japanese Americans legally challenged the government’s actions.416 Yasui v. United States was appealed to the Supreme Court. In his short opinion, Chief Justice Harlan Stone wrote that the curfew order that Yasui was charged with violating was valid, an assertion that was elaborated on the same day in Hirabayashi.417 Yasui’s conviction was upheld, but the district court was ordered to resentence him in light of the government no longer refuting his citizenship.418 B. Gordon Hirabayashi Twenty-four-year-old, Washington-born Gordon Hirabayashi was the second litigant to resist the government through legal action.419 He violated the curfew for a month without repercussion,420 and once all Seattle Nikkei were bused to camps, Hirabayashi and his lawyer went to the Federal Bureau of Investigation.421 He was charged with failing to register and, with his confession and records from a confiscated notebook, a curfew violation.422 Hirabayashi refused bail, opting to stay in jail rather than go to the camp on the principle of not consenting to injustice.423 In Seattle’s federal courthouse, jurors were instructed that their only responsibility was to determine Hirabayashi’s ancestry and compliance with ancestry-based regulations applied to him; their deliberation took ten minutes and resulted in a guilty verdict.424 At the Supreme Court, Hirabayashi argued that discrimination against citizens of Japanese descent and those of other ancestries violated the Fifth Amendment.425 Chief Justice Stone delivered the opinion and made two key legal points relevant to Hirabayashi’s racial discrimination argument: (1) the Fifth Amendment is without an equal protection clause and therefore only 416

Id. Yasui v. United States, 320 U.S. 115, 117 (1943). 418 Id. 419 Daniels, supra note 412, at 31. 420 Id. 421 Id. at 33. 422 Id. 423 Id. 424 Id. 425 Hirabayashi v. United States, 320 U.S. 81, 89 (1943). 417

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restrains discriminatory legislation by Congress that denies due process of the law426 and (2) a curfew order that racially discriminates does not violate the Fifth Amendment as long as such racial distinctions are relevant.427 Chief Justice Stone attempted to justify the relevance of Japanese ancestry in his opinion by citing Japanese children’s attendance of Japanese language schools, Japan’s system of dual citizenship for children born in the United States, and, perhaps most importantly, Japanese residents’ social isolation from the white population.428 Following a firm, yet ironic, denunciation of racial discrimination,429 he still reasoned that there constituted evidence that Japanese people “may menace that safety more than others.”430 Stone concluded that ancestry is a rational and legal determinant by which to measure loyalty during wartime, affirming Hirabayashi’s conviction.431 C. Fred Korematsu Twenty-three-year-old, California-born Fred Korematsu was the third litigant to take the government to court.432 Following announcements of impending forced relocations, Korematsu went by the alias of a Spanish Hawaiian individual and continued to live illegally in Oakland.433 He was eventually recognized and arrested, subsequently confessing and being taken to the San Francisco jail where the Northern California ACLU director was looking for a test case to challenge Executive Order 9066.434 Korematsu forwent trial by jury, and after some time at Tanforan Racetrack, Judge Adolphus F. St. Sure found him guilty.435 Korematsu challenged the assumptions of Hirabayashi before the Supreme Court and argued that by the May 1942 Order No. 34, “all danger

Id. at 100. Id. 428 Id. at 96-8. 429 Id. at 100. 430 Id. at 101. 431 Id. at 113. 432 Daniels, supra note 412, at 34. 433 Id. at 35. 434 Id. 435 Id. 36. 426 427

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of Japanese invasion of the West Coast had disappeared.”436 Justice Hugo Black delivered the majority opinion that made one key legal point relevant to Korematsu’s racial discrimination argument: the civil rights of a single racial group may be curtailed because of pressing public necessity, but not because of racial antagonism.437 Black attempted to establish this alleged public necessity in his opinion.438 D. Mitsuye Endo Mitsuye Endo, twenty two years old, born in California, and previously employed by the state of California, was already incarcerated when approached by an attorney looking for a civil servant for a test case.439 Once sent to Tule Lake, her attorney filed a petition for a Writ of Habeas Corpus on her behalf.440 Judge Michael J. Roche immediately began an all-day hearing, but held the writ without acting until twelve days after the Supreme Court ruled on Hirabayashi and Yasui, and ultimately denying the writ without explanation.441 At the Supreme Court, Endo’s lawyers argued against her detention on the premise of her loyalty to the United States.442 Justice William Douglas agreed with Endo’s argument on the basis that the Department of Justice and the War Relocation Authority conceded her loyalty to the country.443 III. JAPANESE RACE-GENDER IN AMERICA A review of the existing literature on identity and Japanese American wartime treatment suggests five presumptions by the hegemonic culture that inform this Note’s analysis of these cases: the demonization of Japanese men; the weaponization of Japanese female sexuality; the ungendering of the Japanese race; the gendering of the U.S. government; and the racialization of

Korematsu v. United States, 323 U.S. 214, 218 (1944). Id. at 216. 438 Id. at 219; see also id. at 223. 439 Daniels, supra note 412, at 37. 440 Id. 441 Id. 442 Ex parte Mitsuye Endo, 323 U.S. 283, 294 (1944). 443 Id. at 294. 436 437

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the gendering and ungendering of Japanese individuals. Each of these themes offers potential for understanding how the Japanese American plaintiffs’ identities were scrutinized by the justices in wartime Supreme Court cases. The first theme in this literature explores the demonization of Japanese men and the idea that Japanese male virility was a rabid, uncontrollable threat to white-American civility, particularly the virtue of white women. These depictions aligned Japanese men with heteropatriarchal expectations of male virility but demonized this quality as dangerous when possessed by a Japanese man.444 The second theme focuses on the weaponization of Japanese female sexuality and the idea that sex was a tool wielded by Japanese women to subvert U.S. intelligence, particularly the rationale of white men. These depictions distanced Japanese women from heteropatriarchal expectations of female purity and attributed this behavior to their racial and cultural otherness.445 The third theme examines the ungendering of the Japanese race and the perpetuation of the idea that Japanese men and women had ambiguous gender role aspirations, particularly in contrast to the white-American nuclear family. These depictions distanced Japanese women and men from the predictable roles of heteropatriarchy and likened this presumed gender ambiguity to possible treasonous activities.446

444 Doobo Shim, From Yellow Peril through Model Minority to Renewed Yellow Peril, 22 JOURNAL OF COMMUNICATION INQUIRY 385, 391 (1998) (“In [a relatively positive Japanese American film character’s] place arose the fanatical kamikaze ‘Jap’ who brutally tortured and raped ‘white purity’ . . . ”). 445 Frederick Close, Tokyo Rose / An American Patriot, xiii-xiv (2010) (Tokyo Rose was the fictional Japanese radio broadcaster who allegedly “. . . tormented [servicemen] with soft music and salacious come-ons . . . In addition to being well informed, she was seductive, subversive, cunning, deceitful, and duplicitous.”); Emily Roxworthy, The Spectacle of Japanese American Trauma: Racial Performativity and World War II, 69 (2008) (The FBI “described [an unnamed alleged Japanese female spy] in terms suggesting beauty to rival Kathryn Kelly’s . . . the promiscuity of this Japanese American ‘glamour girl’ centered on her playing hostess to an endless stream of ethnic Japanese (men and women) engaged in covert espionage activities.”). 446 Roxworthy, supra note 446, at 67 (The FBI perceived women of the diasporic Japanese spy world as lacking “a heteronormative, predictable essence . . .”); Id. at 72 (The FBI warned of a Japanese man who “presented an imperfect performance of American masculinity through his effete posture and appearance.”).

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The fourth theme illustrates the gendering of the U.S. government and the idea that the government and its white citizens exist in a symbiotic relationship, particularly with the government as the patriarchal figurehead. This depiction inserts the U.S. government into the heteropatriarchal role of male chivalry that is valorized in the hands of white civil servants.447 The fifth theme illustrates the racialization of the gendering and ungendering of Japanese people and the idea that the warfare of the Japanese government could be directly linked to people of Japanese descent because of an inherent racial predisposition. These depictions juxtapose Japanese people descended from an “enemy” nation and European people descended from enemy nations to distinguish only the former as untrustworthy.448 IV. RACE-GENDER ANALYSIS Taken together, the literature on race-gender and the wartime treatment of Japanese Americans reveals an othering from white-American heteropatriarchy that has implications for how the Japanese American plaintiffs in these wartime Supreme Court cases were perceived. Race-gender factored heavily in the perception of Japanese men as rapacious and caused the sexuality of Japanese women to be perceived as exaggerated and dangerous: race-gender feminized men and masculinized women. It also feminized white-Americans and masculinized the American government against Japanese people as a whole. This gendered racialization is evidence that deviance from white-American heteropatriarchy was used in the process

Id. at 76-77 (“. . . in the FBI’s gendered discourse, Hoover’s men were poised to step in as patriarchal protectors . . . Disembodied photographs of a wide-eyed, frightened woman in the foreground and a similarly feminized man in the background echoes this sentiment.”). 448 Shim, supra note 444, at 392 (“For the most part, Germans and Italians were portrayed in films as pitiful, ordinary people who were regrettably misled by dictators while the Japanese were a crazy subhuman race running wild.”); Close, supra note 445, at 46 (“. . . [allied listeners] did not dream of having sex with [Tokyo Rose’s German counterpart, Axis Sally] . . . Tokyo Rose was different . . . American servicemen had entered the war subconsciously prepared to hear an Asian temptress.”); Roxworthy, supra note 445, at 72 (There were “ . . . glaring omissions of those of Japanese descent from FBI acquittals of ‘enemy alien’ groups . . . While the majority of German and Italian Americans might be called loyal to the United States, for Hoover the majority of apparently innocent Japanese Americans were exactly the ones who merited a second look.”). 447

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of othering people of Japanese descent in the United States during WWII. It is also illustrative of how white-American heteropatriarchal assimilation can be weaponized to create false constructs of safety and danger. Race-gender analysis is underdeveloped in the literature on Japanese American wartime Supreme Court cases. This elision is significant because Chief Justice Stone’s citation of the absence of “assimilation” into and “social intercourse” with the “white population” as reasons to presume disloyalty of Japanese people as a whole449 and Justice Douglas’s reference to the acceptance of “our institutions” in defense of Japanese citizens 450 beg the question of what this would entail. In light of the gendered racialization of Japanese individuals described above, this Note argues that race-gender convergence was a criterion used to measure assimilation, social intercourse, and acceptance of institutions of Japanese American wartime plaintiffs. Minoru Yasui deliberately sought his own arrest.451 Gordon Hirabayashi proclaimed years later about his curfew violation: I stopped and I thought, Why the hell am I running back? Am I an American? And if I am, why am I running back and nobody else is? … So I stopped and turned around and went back…. And it became a kind of expression of freedom for me to make sure that I was out after eight.452

Yasui also prepared a four-page statement of his reasoning for noncompliance.453 Fred Korematsu went so far as to receive plastic surgery to change his appearance in an attempt to remain free.454 Mitsuye Endo did not instigate her legal proceedings.455 By contrast, there are three obvious and important distinctions among the four aforementioned plaintiffs: Endo obeyed government orders while Yasui, Hirabayashi, and Korematsu did not; the former was a woman while the latter

Hirabayashi, 320 U.S. at 96-8 (“. . . social, economic and political conditions . . . have intensified [Japanese people’s] solidarity and have in large measure prevented their assimilation as an integral part of the white population . . . there has been relatively little social intercourse between them and the white population.”). 450 Endo, 323 U.S. at 302 (“. . . ‘Americans of Japanese ancestry, like those of many other ancestries, have shown that they can, and want to, accept our institutions . . .”). 451 Daniels, supra note 412, at 29. 452 Id. 453 Id. at 32. 454 Id. at 35. 455 Id. at 37. 449

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were all men; Endo was the only case that ruled in favor of the plaintiff. How proximate was Endo socially positioned to white-American heteropatriarchy relative to her contemporaries? To what extent did this proximity, specifically as a feminine agent, affect the outcome of her case? Language from the Supreme Court opinions reveals a reluctance to sanction racial discrimination without first establishing the inherent risk of danger in not discriminating. The Justices measured this risk by proximity to white-America, and perceived Japanese American proximity to whiteAmerica is intimately related to hegemonic heteropatriarchy. Neither Japanese male adherence to nor deviation from heteropatriarchy was tolerated in the above literature, but the depiction of a Japanese woman adhering to heteropatriarchy was not comparatively scrutinized. Japanese men could not be masculine nor feminine nor genderless without propagandized images projecting danger onto their identity. Japanese women could not acceptably be masculine nor genderless without facing the same fate, but the literature allowed space for rejecting the sexual aspect of femininity and welcome hegemonic facets such as matrimony, maternalism, and submission. This gap in social scrutiny left narrow room for a Japanese woman to escape double barreled race-gendered presumptions of danger. While Yasui, Hirabayashi, and Korematsu’s defiance was a masculine act according to hegemonic gender roles, this Note’s race-gender literature indicates that no gender performance could have protected the male plaintiffs from a gendered othering that would have been perceived as unsafe. Endo’s initial compliance introduced her as feminine according to hegemonic gender roles, and her background could be interpreted to mean that she would not be a threat to the hegemonic social structure.456 This translated in Justice Douglas affirming her loyalty to white-American society. VI. CONCLUSION The plaintiffs that are the focus of this Note are different than the women and men in the literature above: Instead of being fictitious or unnamed characters found in the abstractions of the white-American public and government, these four individuals were self-proclaimed loyal American Id. at 37-8 (“As a woman [Endo] was less threatening, she had never been in Japan, did not speak Japanese, was a practicing Methodist, and had a brother serving in the US Army.”). 456

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citizens who by all known accounts had attempted to assimilate into the hegemonic culture. This Note establishes that Japanese people were marginalized for their perceived divergence from white-American heteropatriarchy. These plaintiffs were judged for similar reasons, and the opinions in their cases were likely influenced by each individual’s proximity to the hegemonic culture. This Note extends the literature on intersectional identity and Japanese American wartime Supreme Court cases by illustrating how dynamics between divergence from white-American heteropatriarchal hegemony and the criminal legal system led to different judicial outcomes in racial discrimination cases. An analysis that recognizes individuals as socially located based on both race and gender more accurately identifies the mechanisms of marginalization than one that only looks at race. An intersectional analysis offers evidence that the xenophobia experienced by Americans of Japanese descent in the United States was the result of white supremacy and heteropatriarchy interacting to create social locations which Japanese people were positioned to be in conflict with. This approach offers a roadmap to identify contemporary hegemonic social locations and how posited positionality informs presumptions about plaintiffs within the criminal legal system. These conclusions challenge the traditional ways that the marginalization of plaintiffs has been defined, identified, and understood. *** This Note was edited by Nicholas Wolf and Zeke Tweedie.

NOTE MISSING AND MURDERED INDIGENOUS WOMEN AND THE REAUTHORIZATION OF THE VIOLENCE AGAINST WOMEN ACT Elizabeth Hartnett*

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Currently, numerous studies estimate that over eighty percent of Indigenous women are affected by violence and face a murder rate which is ten times higher than the national average. Despite the disproportionate risk Native women face, there are not sufficient legal provisions to protect them under 25 U.S. Code § 1304 and the Special Domestic Violence Jurisdiction Court. As an attempt to address this disparity, H.R. 1585 was introduced to the 116th Congress in 2019. Specifically, Section 903 of this bill, entitled “Tribal Jurisdiction Over Crimes of Domestic Violence, Dating Violence, Obstruction of Justice, Sexual Violence, Sex Trafficking, Stalking, and Assault of a Law Enforcement Officer or Corrections Officer,” offers specific protections to help Indigenous women, including an increase of tribal criminal jurisdiction. Yet, the 116th Congress did not pass this bill and this Note argues that it must be reintroduced and passed by the 117th Congress in order to adequately protect Native women. In response to the lack of governmental action, the work of advocacy and relief has fallen upon private nonprofit organizations. For example, the Missing and Murdered Indigenous Women organization focuses on raising awareness of the violence and danger these women face, finding the missing women, and supporting the families of those who have been murdered. Unfortunately, there is not an accurate total count of missing or murdered Indigenous women or girls in recent years, as federal law enforcement agencies failed to compile an accurate reporting and recording system. In consideration of the current national climate of danger for these women, the federal government has a responsibility to enact legislation that would remedy this previous inaction. Although it failed to pass in the 116th Congress, this Note argues that the reauthorization of the Violence Against Women Act of 1994, as described in bill H.R. 1585, must be reintroduced, and passed in order to help protect Indigenous women. *B.A. Candidate for Political Science and Anthropology, Fordham College at Rose Hill, Class of 2022. I am incredibly grateful to be writing for the Fordham Undergraduate Law Review again and would like to thank the Editorial Board and other Senior Editors for their continued support. 457

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I. INTRODUCTION ........................................................................................103 II. STATISTICS OF VIOLENCE AGAINST INDIGENOUS WOMEN .....................104 III. CURRENT LEGISLATION ........................................................................106 IV. THE VIOLENCE AGAINST WOMEN REAUTHORIZATION ACT .................108 V. CONCLUSION ..........................................................................................110 I. INTRODUCTION It is estimated that over eighty percent of Indigenous women are affected by violence; and Indigenous women face a murder rate which is ten times higher than the national average.458 Murder is the third leading cause of death among American Indian and Alaska Native women, as reported by the Urban Indian Health Institute (UIHI).459 These exceedingly high rates of violence demonstrate an ongoing crisis on tribal lands. One of the key issues which has led to the continuation of this crisis is the inability of tribal nations to provide meaningful remedies or prevent these acts of violence. In fact, the federal government has “stripped Indian nations of all criminal authority over non-Indians.”460 This impedes tribal courts’ ability to prosecute a majority of those charged with crimes of sexual violence against Indigenous women, as most are committed by “non-Indians.”461 It is estimated that ninety-six percent of acts of sexual violence against Native women are committed by non-Native people; seventy-six percent of the population on tribal lands are considered non-Native.462 Such offenders cannot be charged by any tribal nation and though the federal government has the power to prosecute these people, federal agencies do not even log all of the reported cases.463 Thus, there is a clear lack of affective action taken by the federal government. 458 Coalition to Stop Violence Against Native Women, MMIWG2S (2020), https://www.csvanw.org/mmiw. 459 Id. 460 Ending Violence Against Native Women, INDIAN LAW RESOURCE CENTER, https://indianlaw.org/issue/ending-violence-against-native-women. 461 Id. 462 Id. 463 Urban Indian Health Institute, Missing and Murdered Indigenous Women and Girls: A snapshot of data from 71 urban cities in the United States, http://www.uihi.org/wpcontent/uploads/2018/11/Missing-and-Murdered-Indigenous-Women-and-Girls-Report.pdf.

104 MISSING AND MURDERED INDIGENOUS WOMEN [Vol. 4 Furthermore, tribal nations do not have sufficient infrastructure in place to prevent most acts of violence against these women. These nations’ police forces are understaffed and underfunded and, therefore, do not have the resources to prevent crimes against Indigenous women or perform sufficient investigations into complaints.464 Thus, the federal government should reauthorize the Violence Against Women Act as the proposed changes will restore powers to tribes granting them criminal authority and full jurisdiction on their lands.465 While further institutional changes will be required in order to establish effective investigations and prosecutions, the reauthorization of the Act will be the first step in reaffirming tribal sovereignty. II. STATISTICS OF VIOLENCE AGAINST INDIGENOUS WOMEN Among all Indigenous women, it is reported that four in five have experienced violence within their lifetimes, more than one in two have experienced sexual violence, and “Indigenous women are murdered at more than 10 times the national average.”466 These high rates of violence and murder, coupled with the thousands of missing person cases, forcefully demonstrate the crisis that Indigenous women are experiencing. Moreover, these statistics only record a portion of the victim pool. There is no record of the families affected by these crimes, children left without mothers, and women and girls who continue to suffer from post-traumatic stress disorder or other physical and mental issues caused by this onslaught of violence.467 It is incredibly difficult to find any accurate statistics that encompass the totality of the experience of the violence against Indigenous women. In 2016, the National Crime Information Center reported an estimated 5,712 cases of missing American Indian and Alaska Native women, yet only 116 cases were logged in the U.S. Department of Justice (DOJ) Database.468 The statistics listed above focus on the experiences of violence of women living on reservations. There had been no specific research done on the experiences of Native women living in urban areas, until the UIHI sought to determine the institutional framework throughout all of America, including on tribal lands,

464

Id. Ending Violence Against Native Women, supra note 460. 466 Id. 467 Id. 468 Urban Indian Health Institute, supra note 463. 465

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which had allowed these women to disappear without public notice.469 The Urban Indian Health Institute (UIHI) began to investigate a number of questions: why law enforcement was not responding to cases of missing women, why obtaining data about these cases of violence was nearly impossible, and why there was a lack of media reports about these cases.470 The UIHI collected data from numerous enforcement agencies, from a federal, state, and city level, searched local and regional news outlets, national missing person databases and reached out to affected families directly.471 And yet, even with this extensive research and data collection, there are still unknowns within UIHI’s research. UIHI identified and studied 506 unique cases of missing or murdered American Indian and Alaska Native women across the United States, crossing tribal affiliation and a wide age range. Of the 506 cases studied, 128 were of missing Indigenous women, 208 were of murdered Indigenous women, and 98 had an “unknown status.”472 Cases labeled with “unknown status” refers either to when a law enforcement agency provided a list of total cases without specifying if the women were murdered or missing, which accounts for sixteen of these unknown status cases, or when a woman had been listed as a missing person and then removed from the list, and UIHI could not verify if the woman had been found alive or deceased.473 Similarly, UIHI identified 153 cases of missing or murdered women which were not mentioned in any law enforcement database or record.474 Indigenous women are disappearing and being murdered at an alarming rate and a significant percentage of these cases are labeled “unknown” or remain unreported. Out of seventy-two city and state agencies that the UIHI reached out to for data collection, thirty-two did not provide data.475 State and federal agencies do not keep sufficient data or records that they are willing to publish to aid in the search for missing and murdered Indigenous women.476 This lack of response from law enforcement indicates that no federal or state law

469

Id. Id. 471 Id. 472 Id. 473 Id. 474 Id. 475 Id. 476 Id. 470

106 MISSING AND MURDERED INDIGENOUS WOMEN [Vol. 4 enforcement agency is vigorously searching or investigating these cases; and this renders these women unsafe. III. CURRENT LEGISLATION There is currently legislation and federal task forces in place which are intended to help protect Indigenous women, yet these measures are not providing sufficient help. The most significant of these legislative measures include Operation Lady Justice, Savanna’s Act, the Not Invisible Act, and the Violence Against Women Act. Operation Lady Justice is a two-year task force established by President Donald J. Trump in 2019 under Executive Order 13898. This task force was established to: [Develop] model protocols to apply to new and unsolved cases of missing or murdered persons in American Indian and Alaska Native (AI/AN) communities, including best practices for law enforcement response, data sharing, and better use of databases; establish multi-disciplinary and multi-jurisdictional teams to review cold cases that involve missing and murdered AI/AN; and develop both an education/outreach campaign and a public awareness campaign.477

Though this task force appears to be a hopeful sign, it will only exist for two years, which prevents it from accomplishing any of its long-term goals.478 It also lacks the authority to make any needed changes.479 Though it is tasked with reviewing cold cases, the Department of Justice has also stated that the task force does not have the authority to investigate these cold cases. Without the authority to investigate these cold cases, the task force is essentially research-based and is not actively creating change or establishing practices to help Indigenous women. As the task force cannot “review or investigate ongoing cases or cold cases, nor to provide direct or indirect support to victims or families at any stage of the criminal investigation or proceedings.”480 Likewise, the theoretical models and databases created by the task force, while aiding in research, do not help the actively missing Indigenous women, nor do they help to prevent future crimes. It essentially 477

Operation Lady Justice: The Presidential Task Force on Missing and Murdered American Indians and Alaska Natives, DEPARTMENT OF JUSTICE, https://operationladyjustice.usdoj.gov/. 478 Id. 479 Id. 480 Id.

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provides no real support and offers no useful services. Tellingly, when one attempts to view the report which lists all the accomplishments of the task force in its first year on the official website of the United States government, one is redirected to a page that is “not found,” and thus, is impossible to determine what, if anything, this task force has accomplished in the first half of its existence.481 Overall, the task force provides no support nor offers any solutions to the epidemic of missing and murdered Indigenous women. Savanna’s Act became public law on October 10th, 2020, and “directs the Department of Justice… to review, revise, and develop law enforcement and justice protocols to address missing or murdered Native Americans.”482 This Act has four main purposes: (1) to clarify the responsibilities of Federal, State, Tribal, and local law enforcement agencies with respect to responding to cases of missing or murdered Indians; (2) to increase coordination and communication among Federal, State, Tribal, and local law enforcement agencies, including medical examiner and coroner offices; (3) to empower Tribal governments with the resources and information necessary to effectively respond to cases of missing or murdered Indians; and (4) to increase the collection of data related to missing or murdered Indian men, women, and children, regardless of where they reside, and the sharing of information among Federal, State, and Tribal officials responsible for responding to and investigating cases of missing or murdered Indians. 483

This Act is significant, most notably for its requirement of increased data collection, which will hopefully lead to fewer cases being classified as “unknown status.” This increased data collection, and the subsequent publication of data, may encourage federal agencies to increase their investigations of open cases. Yet, this increase of data collection is the only measurable and actionable aspect of the Act. The first two objectives of clarification and increased communication, though necessary, cannot be quantified and therefore there is no way to hold the federal government accountable for accomplishing these goals. To “empower Tribal governments with the resources and information necessary” is again necessary, yet this bill does not grant any jurisdictional authority to tribal governments. Tribes still do not have criminal authority over any person considered to be “non-Indian” even though these individuals commit 96% of crimes against Indigenous Operation Lady Justice, supra note 477. 116 P.L. No. 165, 134 Stat. 760 (2020). 483 Id. 481 482

108 MISSING AND MURDERED INDIGENOUS WOMEN [Vol. 4 484 women. Without jurisdiction, these cases will remain the federal and state government's responsibilities. The Act does not grant any new powers to law enforcement agencies that would encourage or enable them to better protect Indigenous women. As the federal and state governments are currently unable to adequately protect these women, then they will continue to be unable to sufficiently protect them despite Savanna’s Act. Also, on October 10th, 2020, the Not Invisible Act was also signed into law.485 This Act seeks to “increase intergovernmental coordination to identify and combat violent crime within Indian lands and of Indians.”486 The Act creates a commission which will work with the Departments of Interior and Justice to make recommendations to the Secretary of the Interior and the Attorney General as to ways the federal government can reduce crimes on tribal land.487 Similar to Savanna’s Act, the Not Invisible Act signifies an important step by the federal government in addressing the crisis Indigenous women are currently facing; however, it fails to create any actionable change. The Act reinforces that jurisdictional and criminal authority of non-Indians will remain the federal government’s responsibility. Operation Lady Justice, Savanna’s Act, and the Not Invisible Act do not provide actionable change, nor do they directly combat any of the current pressing crimes against Indigenous women. With reports of increasing physical and sexual violence, and more missing women each day, Indigenous women face immediate dangers.488 Though enhanced research tools and databases are necessary for expanding investigative procedures, the increased flow of information within the federal government still does not grant any law enforcement agency the ability to immediately prevent or investigate cases of violence against these women. These task forces and legislation are not currently sufficient, and therefore the federal government must pass H.R. 1585 to adequately protect these women. IV. THE VIOLENCE AGAINST WOMEN REAUTHORIZATION ACT In 2019, Representative Karen Bass introduced H.R. 1585, the Violence Against Women Reauthorization Act of 2019: Ending Violence Against Native Women, supra note 460. Not Invisible Act of 2019, Pub. L. No. 116-166, 134 Stat. 766 (2020). 486 Id. 487 Id. 488 Urban Indian Health Institute, supra note 463. 484 485

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This bill modifies and reauthorizes through FY2024 programs and activities under the Violence Against Women Act that seek to prevent and respond to domestic violence, sexual assault, dating violence, and stalking. Among other things, the bill also authorizes new programs, makes changes to federal firearms laws, and establishes new protections to promote housing stability and economic security for victims of domestic violence, sexual assault, dating violence, and stalking.489

For Indigenous women, the most important section of this bill is Title IX, entitled “Safety for Indian Women.” This provision would grant tribal jurisdiction over crimes of domestic violence, dating violence, obstruction of justice, sexual violence, sex trafficking, stalking, and assault of a law enforcement officer.490 Such crimes are currently prosecuted by the Special Domestic Violence Criminal Jurisdiction, but this Act would place these crimes solely under tribal jurisdiction. Currently, tribal jurisdiction only extends to crimes of domestic violence of Indigenous people. This bill would encompass a greater number of crimes and grant the tribe “jurisdiction over the Indian country where the violence occurs.”491 This would grant each tribe significantly more authority to self-govern and enforce laws within their land. Those who are most closely involved with these Indigenous women – friends, family, or neighbors – would be the most involved in protecting them, as opposed to the Department of Justice which would not even record and log missing person reports. The Act would also give resources and grant protections to tribal law enforcement to ensure they would be better equipped to handle these cases and crimes. Specifically, this bill would grant tribal jurisdiction over crimes of obstruction of justice and assault of a law enforcement officer or corrections officer.492 Therefore, tribes would have jurisdiction where a violation includes “the threatened, attempted, or actual harmful or offensive touching of a law enforcement or correctional officer” and any violation which “involves interfering with the administration or due process of the tribe’s laws including any tribal criminal proceeding or investigation of a crime.”493 This would grant tribes criminal jurisdiction to directly investigate and prosecute crimes which would affect the law enforcement agencies. This Violence Against Women Reauthorization Act, H.R. 1585, 116th Cong. (2019). Id. 491 Id. 492 Id. 493 Id. 489 490

110 MISSING AND MURDERED INDIGENOUS WOMEN [Vol. 4 bill also allows the Attorney General to authorize reimbursements or grants to tribal governments “for expenses incurred in exercising special tribal criminal jurisdiction.”494 The Act also ensures that tribal governments will have sufficient monetary resources to fund investigations and any resulting prosecutions. Additionally, the Act proposed annual reporting requirements mandates that the Attorney General and Secretary of the Interior submit a yearly report to the House Committee on Indian Affairs, the Senate Judiciary Committee, the House Committee on Natural Resources, and the House Judiciary Committee. Such reports would include all statistics of missing and murdered Indigenous women, and suggest possible improvements for data collection, like Savanna’s Act and the Not Invisible Act.495 Overall, this bill seeks to improve data collection to accurately measure instances of missing and murdered Indigenous women, identify circumstances that endanger Indigenous women, and, most importantly, reduce the number of missing and murdered Indigenous women by reformulating jurisdictional authority. Though this legislation is best equipped to address the concerns of Indigenous women, it expired when the 116th Congress ended. In the 117th Congress, the Democratic Party has maintained control of the House. In the Senate, there is an even 50-50 between Republicans and Democrats, with Vice President Kamala Harris, a Democrat, casting the tie-breaking vote. As president of the Senate with a Democratic majority in, at least Congress, this bill should be reintroduced. It is much more probable now that it could pass through the Senate. V. CONCLUSION Considering the current national climate of increased danger for these Indigenous women, the federal government has a responsibility to pass legislations to remedy its previous inaction. Although it failed to pass in the 116th Congress, the act to reauthorize the Violence Against Women Act of 1994 as described in Bill H.R. 1585 must be reintroduced and passed with bipartisan support to help protect Indigenous women. This bill is the best suited to help Indigenous women as it grants tribal jurisdiction for many more crimes, provides new protections and increased resources to tribal law

494 495

Id. Id.

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enforcement, and promotes additional research on the causes of this crisis. Overall, if H.R. 1585 is implemented in conjunction with the other aforementioned legislation and task forces currently in place, it will provide the best course of action to protect Indigenous women and prevent a further increase in the numbers of missing and murdered Indigenous women. *** This Note was edited by Madalyn Stewart, Henry Maguire, and Katherine Timofeyev.

NOTE THE LEGALITY OF THE TRUMP ADMINISTRATION’S ZERO-TOLERANCE POLICY AND FAMILY SEPARATION Elizabeth Lebci*

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The Trump Administration challenged the limits of the American rule of law through controversial immigration policies. In 2017, the Department of Justice released a “zero-tolerance” policy toward immigration, pledging to prosecute and deport any and all undocumented immigrants. The Department of Homeland Security and U.S. Immigration and Customs Enforcement implemented these policies and detained illegal aliens at the border. Subsequently, immigration agents separated families at the border, sending children to separate detention camps from their parents and siblings. This Note will evaluate the legality of the Trump Administration’s “zerotolerance” and familial separation policies. This Note will argue that the Trump Administration partially violated the due process rights of undocumented immigrants when separating families at the border by failing to meet the necessary burden of proof. This Note will begin with an overview of due process rights and immigration policies under the Trump Administration; this will be followed by an analysis of the Flores Settlement Agreement, which provides regulations for the duration and conditions of detainment of minors. It will then contextualize the Administration’s separation of families by analyzing the case of Ms. L. v. U.S. Immigration and Customs Enforcement (2019). This Note will ultimately argue, based on ruling in Ms. L., undocumented immigrants’ due process rights were partially violated by the Trump Administration’s zero-tolerance policy.

* B.A. Candidate for Political Science and Sociology, Fordham College at Rose Hill, Class of 2023. It has been an honor to write for the Fordham Undergraduate Law Review and learn from my peers. This Note would not have been possible without the incredible support of every Editorial Board member, especially Jennifer Rivero and Caroline Morris. Additional thanks to my Senior Editors for editing this Note. Lastly, to my parents for their loving support and courage, for which I am infinitely grateful. 496

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I. INTRODUCTION ........................................................................................113 II. DUE PROCESS RIGHTS OF IMMIGRANTS ..................................................114 III. TRUMP ADMINISTRATION'S ZERO-TOLERANCE POLICY ........................115 A. Zero-Tolerance Policy ....................................................................115 B. Separation of Families ...................................................................117 IV. FLORES SETTLEMENT AGREEMENT .......................................................118 A. President Trump’s Resistance to the FSA ......................................119 V. MS. L. V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT .....................120 A. The Court’s Decision for Preliminary Injunction ..........................123 B. Further Litigation ...........................................................................124 VI. CONCLUSION.........................................................................................124 I. INTRODUCTION The Trump Administration implemented a zero-tolerance policy for undocumented immigrants, which resulted in the separation of familial units and the denial of asylum for many seeking safe haven in the United States. Migrant families from Central America have fled their countries in fear of persecution and in hope for a better life in the United States. The United States-Mexico border has been the main port of entry for the majority of undocumented immigrants to enter the United States: every year for the past five years, about 265,000 migrants fled the Northern Triangle in Central America, most seeking asylum in the United States.497 Donald Trump began his fight against undocumented immigrants on the campaign trail in 2016. He pledged to increase Border Patrol officers, the frequency of patrols, and to build a wall at the United States-Mexico border to protect U.S. jobs and communities from undocumented immigrants. Once in office, President Trump ordered an increase in the number of Border Patrol agents, as he had promised. In 2019, yearly migrant encounters with the U.S. Border Patrol increased from 521,090 to 977,509.498 To further enforce President Trump’s crackdown on illegal immigration, the Department of Justice released a zerotolerance policy in 2018, pledging to prosecute any and all undocumented immigrants, with no exceptions for those who filed asylum petitions or were Peter J. Meyer & Maureen Taft-Morales, CONG. RSCH. SERV., IF11151, CENTRAL AMERICAN MIGRATION: ROOT CAUSES AND U.S. POLICY 1 (2019). 498 Southwest Land Border Encounters, U.S. CUSTOMS AND BORDER PROTECTION (2021), https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters. 497

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accompanied by minors. As a result of this policy, the country would soon see an increase in the separation of family units; in April 2018 1,995 minors were separated from 1,940 adults within six weeks (the number continued to escalate).499 This zero-tolerance policy has resulted in asylum seekers being sent back to unsafe conditions in their countries of origin. In the instances of the separation of family units, neither the parents nor their children were given assurances of when and if re-unification will occur. II. DUE PROCESS RIGHTS OF IMMIGRANTS The right of Immigrants to due process protections must conform with the Fifth Amendment:500 rights that “no person shall . . . be deprived of life, liberty, or property, without due process of law.”501 However, there are limitations to the due process rights of immigrants. The Fifth Amendment, according to the courts, applies in full to every lawful permanent resident, thus, an entrant alien –– an undocumented immigrant who entered the country illegally –– is not afforded the same constitutional rights.502 An entrant alien can be deported without a hearing or presentation of evidence.503 In regard to entrant aliens, their procedural due process rights are established by the laws enacted by Congress. Therefore, undocumented immigrants don’t have the due process rights of legal immigrants.504 Additionally, undocumented immigrants can be deported without a jury trial. Wong Wing v. United States (1896), the US Supreme Court established that “Congress may deport without a jury trial, but imprisonment at hard labor is an infamous offense calling for judicial trial to establish the guilt of the accused.”505 If the government

Fact Sheet: Family Separation at the U.S.-Mexico Border, NATIONAL IMMIGRATION FORUM (2018), https://immigrationforum.org/article/factsheet-family-separation-at-the-u-smexico-border/. 500 See Wong Wing v. United States, 163 U.S. 228 (1896) (imprisonment of immigrants who entered illegally violated the 5th and 6th Amendment of the U.S. Constitution). 501 U.S. CONST. amend. V. 502 E.g., Salgado-Diaz v. Gonzales, 395 F.3d 1158, 1164 (9th Cir. 2005). 503 E.g., David M. Grable, Personhood Under Due Process Clause: A Constitutional Analysis of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 83 CORNELL L. REV., 821, 845 (1998). 504 E.g., id. at 847. 505 Wong Wing v. United States, OYEZ, https://www.oyez.org/cases/1850-1900/163us228. 499

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imprisons the detainee, a trial must ensue; however, deportation following detention does not require a trial.506 In 2019, the government announced its “Remain in Mexico” policy. This policy returned asylum seekers to Mexico to wait out the duration of their pending U.S. immigration cases.507 The asylum seekers that were approved for hearings by border officers were sent back to Mexico, which put many of them in great danger considering the circumstances from which they were fleeing, including persecution, gang violence, and political unrest. Additionally, this policy violated the asylum seekers’ right to due process because relocating them to Mexico removed their access to legal support.508 This policy was unlawful because “returning refugees to Mexico under this policy would directly contradict Congress’s specific instruction that asylum seekers remain in the United States while their cases are pending.”509 As noted above, the procedural due process rights of undocumented immigrants must conform to the laws and policies passed by Congress. III. TRUMP ADMINISTRATION'S ZERO-TOLERANCE POLICY A. Zero-Tolerance Policy Xenophobic rhetoric and policies to deter undocumented migration were a prime focus since the start of Trump’s campaign for the presidency. In April 2018, the Department of Justice introduced the Administration’s zerotolerance policy. This policy called for the prosecution of all immigrants who crossed the U.S. border without inspection.510 The Administration created the policy with the intent to criminally prosecute every adult who entered the country without government authorization.511 This policy authorized officials to act without regard to the undocumented immigrant’s criminal record, immigration history, whether travelling with children, or valid asylum claims. Wong Wing, 163 U.S. at 235-236. E.g., Mohammed Salem Reitures, Frequently Asked Questions: Remain In Mexico Policy, JUSTICE FOR IMMIGRANTS (2019), https://justiceforimmigrants.org/wpcontent/uploads/2019/02/Remain-in-Mexico_en.pdf. 508 E.g., id. 509 Id. 510 E.g., William A. Kandel, CONG. RSCH. SERV., R45266, THE TRUMP ADMINISTRATION’S “ZERO TOLERANCE” IMMIGRATION ENFORCEMENT POLICY 2 (2021). 511 See id. 506 507

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For those seeking asylum, Border Patrol officers were instructed to utilize illegal entry as adverse consideration in the applicants’ asylum claims.512 In reality, President Trump’s hostility towards undocumented immigration was not a new development in American government. The Department of Justice’s zero-tolerance policy was a change in the “level of enforcement of an existing statute rather than a change in statute or regulation”513 under the Trump Administration. Since the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, “illegal entry” has been a federal misdemeanor and “illegal reentry” a federal felony.514 Illegal reentry is classified as entering the United States without proper authorization after a previous deportation.515 However, the government has prioritized the prosecution of individuals with serious previous criminal convictions who have reentered the country after deportation, and those without convictions who reentered illegally. The removal proceedings following an individual’s detention are expedited considering the mass amounts of detentions. In 2019, there were 851,508 apprehensions at the border, a 115% increase from the previous year and the highest number in twelve years.516 Expedited removal and reinstatement of removal proceedings generally limit opportunities for administrative or judicial review of cases. This is a result of federal legislation that allows the removal of undocumented immigrants without a hearing or trial unless they indicate their fear of persecution in their origin country.517 Therefore, asylum seekers must provide evidence of the need to flee their origin country to avoid persecution.518 To aid in the prosecution of all undocumented immigrants entering at the border, the Attorney General sent “35 additional prosecutors to U.S. Attorney’s Offices along the Southwest border and 18 additional immigration judges to adjudicate cases in immigration courts near the Southwest border.”519 The Administration’s

512

E.g., id. Kandel, CONG. RSCH. SERV., supra note 510, at 2. 514 E.g., Illegal Immigration Reform and Immigration Responsibility Act of 1996, Pub. L. 104-208, 110 Stat. 3009. 515 Id. 516 John Gramlich & Luis Noe-Bustamante, What’s Happening at the U.S.-Mexico Border in 5 Charts, PEW RESEARCH CENTER (2019), https://www.pewresearch.org/facttank/2019/11/01/whats-happening-at-the-u-s-mexico-border-in-5-charts/. 517 See Kandel, CONG. RSCH. SERV., supra note 510. 518 Id. 519 Id. at 8. 513

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zero-tolerance policy, implemented by the Department of Justice, promised the detention and prosecution of all undocumented immigrants crossing the border, and the policy’s implementation resulted in increased detentions and deportations. B. Separation of Families The promulgation of the zero-tolerance policy resulted in an increased number of family separations. Because of these separations, the government estimated that there were over 2,500 unaccompanied minors,520 the children of undocumented adults who were detained for prosecution. When given “unaccompanied” status, minors are treated as if they arrived without a parent or guardian, and so they are transferred from the jurisdiction of the Department of Homeland Security to the Department of Health and Human Services (DHHS). The unaccompanied minors are then transferred to shelters run by the Office of Refugee Resettlement (ORR), a branch of DHHS; and as they are “unaccompanied,” they are held in facilities for children without guardians. Subsequent reports have revealed that parents and their children were often not told they were to be separated, let alone for how long or to which facility they were being taken.521 This zero-tolerance policy and familial separation protocol have been widely criticized for violating human rights and the principles of international law, which prohibits “penalizing refugees for unlawful entry or presence, and the prohibition of returning refugees, whether directly or indirectly, to the territories where their life or freedom would be threatened.”522 The term “unaccompanied minor” holds great legal significance in immigration cases. Once separated and labeled an unaccompanied minor, children must make their own legal arguments in their immigration cases. And once transferred to ORR custody, children are “put into formal removal proceedings, ensuring they can request asylum or other types of immigration relief before an immigration judge.”523 As a result of the label of Family Separation by The Numbers, ACLU (2018), https://www.aclu.org/issues/familyseparation. 521 E.g., Cristina Muñiz de la Peña et al., Working with Parents and Children Separated at the Border: Examining the Impact of the Zero Tolerance Policy and Beyond, 12 JOURNAL OF CHILDHOOD & ADOLESCENT TRAUMA 153 (2019). 522 Id. at 155. 523 Kandel, CONG. RSCH. SERV. supra note 510, at 5. 520

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“unaccompanied” minors, these children do not have access to governmentappointed counsel or the ability to communicate with their parents. Therefore, all children of all ages must represent themselves and argue why they should be allowed to stay in the United States.524 Finally, in June 2018, President Trump issued an executive order reversing the policy of separating family units at the border. This action was a result of intense criticism from the public, protests, and legal action. IV. FLORES SETTLEMENT AGREEMENT When a child is labeled as an unaccompanied minor and transferred to the custody of the Office of Refugee Resettlement the provisions of the Flores Settlement Agreement (FSA) are not entirely applicable to the situation of the detained minor. The FSA was implemented in 1997 to protect unaccompanied minors detained and transferred to Immigration and Naturalization Service (INS) custody. The FSA has remained the strongest legal frameworks for government detention of minors with or without their parents. The FSA states that each minor detained shall be placed in the least restrictive setting appropriate to their age and individual special needs.525 The agreement also stipulates that the INS shall hold minors in facilities that are safe and sanitary and that are consistent with the INS’s concern for the particular vulnerability of minors.526 In addition to these requirements, minors must be allowed contact with their families arrested with the minor at the time of detention. However, the protection of minors was violated by the Trump administration’s decision to label all minors “unaccompanied” at the time of detention and familial separation. Under an additional requirement of the FSA, when the minor is taken into custody, “the INS, or the licensed program in which the minor is placed, shall make and record the prompt and continuous efforts on its part toward family reunification and the release of the minor.”527 This stipulation of the FSA is made difficult when the parent and child are separated and the child is labeled as “unaccompanied,” due to the Department of Justice’s intent to prosecute and deport the undocumented parent and child separately. E.g., Muñiz de la Peña et al., supra note 521, at 155. E.g., Reno v. Flores, 507 U.S. 292 (1993). 526 Id. 527 Id. 524 525

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A. President Trump’s Resistance to the FSA In June 2018, President Trump issued an executive order directing the attorney general to ask the Ninth Circuit Court of Appeals to modify the FSA to allow for the detention of children with their families for the duration of immigration and/or criminal proceedings.528 The executive order also directed the DHS to maintain custody of familial units during immigration and/or criminal proceedings to the extent permitted by the law. The government notified the court presiding over the FSA of its intent to detain family units together until the completion of immigration proceedings.529 This was in response to the ruling in Ms. L. v. U.S. Immigration and Customs Enforcement, which called for the reunification of family units. The District Court judge denied the government’s motion to detain familial units together, arguing that Ms. L. called for reunification, not detention as a familial unit.530 The FSA is intended to expedite the release of both unaccompanied and accompanied minors and requires safe, non-restrictive detention of minors. President Trump demanded that the FSA be modified or suspended in order to keep family units together for the duration of immigration and criminal proceedings. President Trump’s attempt to modify the agreement violated the terms of the FSA due to the agreement’s policy to expedite the release of minors from DHS custody. According to a 2001 revision of the FSA, the settlement would expire 45 days after the government published the regulations for implementation. In August 2019, the Department of Homeland Security and the Department of Health and Human Services published new regulations for implementation with slight alterations to the agreement.531 Following the promulgation, these agencies faced legal challenge because they did not replicate the language of the settlement in accordance with the 2001 stipulation.532 Specifically, the

See Exec. Order No. 13841, 83 Fed. Reg. 29435 (2018), https://www.govinfo.gov/content/pkg/FR-2018-06-25/pdf/2018-13696.pdf. 529 Id. 530 E.g., Sarah Herman Peck & Ben Harrington, CONG. RSCH. SERV., R45297, THE “FLORES SETTLEMENT” AND ALIEN FAMILIES APPREHENDED AT THE U.S. BORDER: FREQUENTLY ASKED QUESTIONS (2018). 531 See generally id. 532 E.g., id. 528

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government modified the limitations to the detention of minors as specified by the FSA.533 The new regulation lengthened the duration of detention to elongate custody, placement, releasement, licensing, and the minor’s right to hearings through the change of the FSA’s statutory language.534 The new regulations were struck down in an injunction due to the substantial differences in rules resulting in the deletion of binding language. 535 The presiding judge noted large discrepancies between the new and original agreement.536 The government removed binding language which indicated the government did not intend to adhere to the FSA’s terms due to its disregard of the integrity of the agreement.537 The judge noted the new agreement’s deletion of the word “shall,” which indicated the elimination of the obligation to the agreement. Hence, the judge ruled to enjoin the government from enforcing these new regulations and required the government maintain the binding terms of the FSA.538 V. MS. L. V. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT The actions taken by President Trump in June and August of 2018 were in response to the ruling in Ms. L. v. U.S. Immigration and Customs Enforcement. The plaintiffs, parents of children taken from them, accused the government of separating families and placing all minor children in facilities for unaccompanied minors. The plaintiffs claimed this practice separated families with small children and infants, and many family units seeking asylum.539 The plaintiffs’ claims were supported by events at the time, and relief was requested. As noted above, family separation practices were carried out following the announcement of the Trump Administration’s zerotolerance policy in May 2018. Additionally, the executive order issued by President Trump on June 20th did address keeping family units together for

533

E.g., id. E.g., id. 535 E.g., Sarah Collins, Kids in Cages and the Regulations That Protect Them, 97 DENV. L. REV. Online (2019). 536 See id. 537 E.g., id. 538 E.g., id, at 23. 539 See generally, Ms. L. v. U.S. Immigration & Customs Enf’t, 330 F.R.D. 284 (S.D. Cal. 2019). 534

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the duration of immigration and criminal proceedings;540 however, it failed to acknowledge the aspect of reunification. The plaintiffs in this case also sought a court order for reunification of those families separated before the executive order was issued. The court held the plaintiffs made a legally sound claim for the “violation of their substantive due process rights to family integrity under the Fifth Amendment to the U.S. Constitution.”541 This claim was based on the plaintiff's allegations that while being detained the government separated family units without meeting the necessary burden of proof, which must showcase the parents were unfit and the child must be labeled an “unaccompanied minor.”542 The case was expanded to the present class action suit discussed here to include families in similar situations.543 The plaintiffs requested injunctive relief to prohibit the separation of migrant children without meeting the burden of proof to prove a migrant parent is unfit or presents a danger to the child.544 Additionally, the plaintiffs sought a court order requiring the immediate reunification of families.545 The defendants argued that an injunction is no longer necessary following the issuance of the President’s executive order.546 However, the court found this argument is not sufficient in substituting the need for the injunction due to the government’s failure to enact policies toward reunification and the halting of family separation. Importantly, the practice of family separation is subject to judicial review, as undocumented immigration proceedings are subject to judicial review. The plaintiffs’ claim that the defendants violated their due process rights must be supported by the defendants’ actions. In the circumstances of illegal entry, the family may be separated; however, when the family is intact and lawfully seeking asylum, the rules differ. In these instances of separation, the government failed to present sufficient evidence proving the parents were unfit or presented a danger to their children. Many of the plaintiffs were

Exec. Order No. 13841, 83 Fed. Reg. 29435 (2018), https://www.govinfo.gov/content/pkg/FR-2018-06-25/pdf/2018-13696.pdf. 541 Ms. L., 33 F.R.D. 542 Id. 543 Id. 544 Id. 545 Id. 546 Id. 540

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separated from their children because of the government’s zero-tolerance policy. Specifically, the plaintiff Ms. L. serves as an example of unlawful family separation. Ms. L. sought asylum as she and her child fled persecution in the Democratic Republic of Congo, and the government separated the family unit without meeting the burden of proof needed to prove grounds for the separation. Additionally, the policy of family separation was implemented without an effective procedure or system. As a result, children and parents were not notified of where the other was located, there was no communication between the family unit, and there were no plans for reunification.547 Within this system, the government prioritized tracking an immigrant’s property over the immigrant’s child. In their lawsuit, the plaintiffs emphasized the emotional distress inflicted on parents when the government failed to provide information regarding their child’s whereabouts.548 They also argued, there is an additional burden placed on the child; not only is the child emotionally distressed when taken from their family, but the child must also present their asylum claim without the benefit of parental assistance. Once parents have completed their criminal sentence they are then deported without the knowledge of their child’s location. The defendant’s current reunification process is designed for children apprehended without a parent or guardian. Therefore, the current burden is placed on the parent to locate his or her child and request unification. The defendants’ failure to meet the burden of proof regarding proof of parents’ inability to care for their child when detaining and separating the family unit showcases a possible due process violation. The plaintiffs must also show that they experienced irreparable injury to receive relief. In this instance, the harm done is the separation of a parent from his or her child, which the Ninth Circuit has previously acknowledged to be an irreparable injury.549

547

Id. Id. (The plaintiffs consistently emphasized the emotional distress inflicted on separated parents and children throughout the case). 549 Id. 548

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A. The Court’s Decision for Preliminary Injunction The plaintiffs argued an injunction was warranted because the injunction would end an unlawful practice already illegally implemented by the government.550 Weighing the harm to the plaintiffs and defendants, the court agreed that the balance of equities leaned towards the plaintiffs. The defendants argued the injunction would cause a negative impact on their ability to enforce immigration and criminal laws. However, the injunction would prevent the separation of family units and order reunification; it would not infringe on the government’s power to enforce immigration laws consistent with the rule of law.551 Also, the court was required to weigh the public interest involved, which included the enforcement of criminal and immigration laws and the protection of the constitutional liberty of parental care and custody of immigrants’ children. It was argued that the issuance of the injunction would serve both important public interests. As previously established, an injunction would not infringe on the government’s ability to enforce immigration laws, and the injunction would also protect the plaintiffs’ constitutional rights. The courts enjoined the government “from detaining Class Members in DHS custody without and apart from their minor children” without proof “the parent is unfit or presents a danger to the child, unless the parent affirmatively, knowingly, and voluntarily declines to be reunited with the child in DHS custody.”552 In accordance with these conditions, the government was enjoined from continuing to detain these children of the plaintiffs, and was ordered to release and reunify the minor with the plaintiff. And unless: there is a determination that the parent is unfit or presents a danger to the child, or the parent affirmatively, knowingly, and voluntarily declines to be reunited with the child: (a) Defendants must reunify all Class Members with their minor children who are under the age of five (5) within fourteen (14) days of the entry of this Order; and (b) Defendants must reunify all Class Members with their minor children age five (5) and over within thirty (30) days of the entry of this Order.553

550

Id. Id. 552 Id. 553 Id. 551

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The court also ordered the government to take immediate step to bring the plaintiffs in contact with their children within ten days.554 The court found that the government did not meet the burden of proof conclusively demonstrating a parent is unfit, presents a danger to the child, or relinquishes their custody.555 The court found the government in violation of the parent’s due process rights in instances of familial separation without just cause. B. Further Litigation Following the court’s preliminary injunction in Ms. L. v. ICE, the plaintiffs argued that the Trump administration continued to separate over 1,000 families in violation of the injunction.556 In a subsequent decision, the court clarified the rules for family separation and determined that the government had not violated the preliminary injunction. The Court also ordered the government to conduct DNA testing if they questioned the parentage before separating the family unit to efficiently resolve concerns of fake documentation in a definitive way.557 Additionally, the court ruled in favor of the government stating that they did not violate the injunction and agreed that they can remove parents based on any criminal history which can be used to assess parental fitness, possible danger to the child, flight risk, and danger to society upon release.558 The court allowed the defendants discretion in determining parental fitness or danger and subsequent separation. 559 The Court did emphasize the defendant’s obligation to reunify parents and children upon release.560 VI. CONCLUSION As seen above, in response to the injunction of Ms. L., the Trump Administration claimed it needed to disregard the Flores Settlement Agreement to comply with the injunction. The court rejected the

554

Id. Id. 556 Id. 557 Id. 558 Id. 559 Id. 560 Id. 555

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government’s contention and asserted the government can comply with the injunction and the FSA, and the termination of the FSA would violate the rights of immigrant children. The court’s rulings have been consistent in their message. Clearly the Trump Administration violated the due process rights of undocumented immigrant parents by separating them from their children without the knowledge of their children’s location or the necessity for separation. However, it’s clear the government retains the authority to separate children from their parents upon meeting the burden of proof regarding a parent’s fitness and the danger he or she may pose to the child. Therefore, the Trump Administration’s separation of family units partially violated the due process rights of undocumented immigrant parents. The Administration has the authority to detain and separate family units to protect and enforce immigration and criminal laws; however, the Administration failed to meet the burden of proof needed to separate and label a child as an “unaccompanied minor.” *** This Note was edited by Alleyah Ally, Fahima Hussain, and Anthony Vu.

NOTE PROBLEMS UNDERLYING TRUMP V. HAWAII: AN ANALYSIS OF THE IMMIGRATION AND NATIONALITY ACT Henry Maguire* and Caroline Morris**

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This Note examines the use of executive action to modify immigration policy and argues that in the Immigration and Nationality Act, the president has been given too much discretion to modify immigration policy at will, to the detriment of justice and the rule of law. Recent litigation in Trump v. Hawaii (2018) has highlighted the undesirable legal, political, and practical effects that stem from hasty, unilateral changes to immigration policies and the subsequent inefficacy of the main safeguard against executive action, the Administrative Procedures Act. This Note suggests that it would be preferable for Congress to assert greater control over immigration policy and design a more permanent national immigration policy. I. INTRODUCTION ........................................................................................127 II. DERIVING AUTHORITY: EXECUTIVE ACTIONS ........................................128 A. Two Sources of Authority ................................................................128 B. The Administrative Procedures Act ................................................129 III. THE IMMIGRATION AND NATIONALITY ACT..........................................130 IV. PRESIDENT TRUMP AND IMMIGRATION .................................................131 A. The 2016 Presidential Campaign ...................................................131 B. Proclamation No. 9645 ..................................................................132 IV. TAKEN TO THE SUPREME COURT: TRUMP V. HAWAII .............................134 A. The Issue of Authority Under the INA .............................................134 B. Violation of the Establishment Clause Claim .................................135 V. UNREASONABLE POWER: ISSUES WITH THE IMMIGRATION AND NATIONALITY ACT...............................................................................136 A. Unchecked Biases ...........................................................................137 B. Primary Authority for Immigration Policymaking .........................138 V. CONCLUSION ..........................................................................................139

* B.A. Candidate for Theology, Fordham College at Lincoln Center, Class of 2022. ** B.A. Candidate for Political Science and International Studies, Fordham College at Lincoln Center, Class of 2022. It has been an honor to the Executive Articles Editor for the Fordham Undergraduate Law Review. Thank you to everyone who has provided beneficial feedback and advice for this Note.

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I. INTRODUCTION On the pedestal of the Statue of Liberty, Emma Lazarus’ famous poem, The New Colossus, calls to “give me your tired, your poor, [y]our huddled masses yearning to breathe free.”562 Immigration and immigration policy has become an extremely complex and polarized issue in the United States, and it affects everyone living in the country. In fact, immigration has had a place in American political debates since the ratification of the U.S. Constitution.563 In 1790, Congress passed its first federal restrictions on immigration, establishing limited citizenship and a two-year waiting period for naturalization.564 Then, in 1868, Congress ratified the Fourteenth Amendment, which stated that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”565 In 1965, Congress passed the Immigration and Nationality Act (I.N.A.), which gave the executive branch broad discretion to suspend the entry of foreign nationals into the United States.566 In 2018, President Donald J. Trump exercised his authority under the I.N.A. to issue Proclamation No. 9645, which restricted entry of immigrants from eight identified countries.567 The U.S. Supreme Court case Trump v. Hawaii (2018) challenged the constitutionality of President Trump’s Proclamation with the respondents arguing that the Proclamation exceeded presidential authority granted by the I.N.A. and that the President’s Proclamation violated the Establishment Clause of the First Amendment. However, another important and central question regarding Trump is whether the I.N.A. grants too much power to the president regarding immigration policy. This Note begins with a discussion of the authority from which presidents derive the power to issue executive orders and proclamations. This Note then contextualizes the discussion of executive orders by specifically examining

The New Colossus, NATIONAL PARK SERVICE (Aug. 14, 2020), https://www.nps.gov/stli/learn/historyculture/colossus.htm. 563 See Brandon E. Davis, America’s Immigration Crisis: Examining the Necessity of Comprehensive Immigration Reform, 54 LOY. L. REV. 353, 354 n.3 (2008). 564 Id. at 356. 565 U.S. CONST. amend. XIV. § 1. 566 Immigration and Nationality Act, 8 U.S.C. § 1182(f) (1968). 567 Trump v. Hawaii, 138 S. Ct. 2392, 2404, 2399 (2018). 562

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the Immigration and Nationality Act and Proclamation No. 9645. This Note examines the decision in Trump v. Hawaii, and ultimately argues that the I.N.A grants the president unreasonable authority to be the sole determinant of the entry restrictions placed on immigrants. II. DERIVING AUTHORITY: EXECUTIVE ACTIONS Executive action is an umbrella term which encompasses every order issued at the discretion of the executive, including executive orders and presidential proclamations.568 Executive orders have become a principal means by which presidents accomplish the promises they made on the campaign trail.569 For instance, President Barack Obama, who promised in the 2008 presidential campaign to reduce carbon dioxide emissions and invest $150 billion in new technologies, issued a total of 276 executive orders, many of which focused on environmental protection and regulation.570 The authority from which presidents derive the power to issue such orders is crucial in understanding the heart of the debates surrounding a president’s power to make unilateral decisions regarding immigration policy and is central to the merits of Trump v. Hawaii. A. Two Sources of Authority An expansive view of executive authority that allows a president to change policies via executive orders is a result of many decades of the gradual growth coupled with insufficient judicial and legislative checks and oversight. Presidential authority to issue executive orders “must come from either the Constitution or from statutory delegations.”571 One source of authority is Article II of the Constitution, which requires the executive to

Ben Wilhelm, CONG. RSCH. SERV., IF11358, PRESIDENTIAL DIRECTIVES: AN INTRODUCTION 1 (2019). 569 See generally Gerhard Peters & John T. Woolley, Executive Orders, THE AMERICAN PRESIDENCY PROJECT (Apr. 20, 2021), https://www.presidency.ucsb.edu/statistics/data/executive-orders. 570 Id.; John M. Broder, Obama Affirms Climate Change Goals, N.Y. TIMES (Nov. 18, 2008), https://www.nytimes.com/2008/11/19/us/politics/19climate.html. 571 Todd F. Gaziano, The Use and Abuse of Executive Orders and Other Presidential Directives, 5 TEX. REV. LAW & POL. 267, 276 (2001). 568

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“take Care that the Laws be faithfully executed.”572 The Constitution also delegates specific powers to the executive branch, including the role of Commander-in-Chief, the power to make treaties, and the power to nominate ambassadors and Supreme Court justices.573 It is generally understood that “when the President is lawfully exercising one of these functions, the scope of his power to issue written directives is exceedingly broad.”574 In other words, when a president is deriving authority directly from the Constitution, the authority to issue executive orders on those enumerated topic areas is quite expansive.575 A president may also derive the authority to issue executive orders from congressional legislation. However, the President’s ability to exercise such authority is limited, since “if the [p]resident’s authority is implied or inherent in a statutory grant of power, Congress remains free to negate or modify that authority.”576 Thus, the question of the limits of president’s authority and the extent to which those implied or inherent powers can be exercised has been a contentious issue in American politics and in the courts. B. The Administrative Procedures Act While implied or inherent powers are still the subject of vigorous debate, the executive enjoys enormous latitude in its policy positions on some issues, particularly those involving foreign policy, such as immigration.577 However, the executive’s power, even at its broadest, is limited. The courts and Congress have recognized the political and legal disadvantages of governmental overreach and have thus imposed certain limits.578 For example, federal administrative agencies, which operate at the discretion of the executive branch although not via executive orders, are governed by the Administrative Procedure Act of 1946 (A.P.A.).579 The Act recognized the growing role of administrative policies and agencies (as opposed to the U.S. CONST. art. II, § 3. U.S. CONST. art. II, § 2, cl. 2. 574 Gaziano, supra note 571, at 279. 575 See id. 576 Id. at 280. 577 Kate M. Manuel & Michael John Garcia, CONG. RSCH. SERV., R43782, EXECUTIVE DISCRETION AS TO IMMIGRATION: LEGAL OVERVIEW (2014). 578 H.R. Rep. No. 1980, at 10 (1946). 579 5 U.S.C § 551 (2012). 572 573

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legislature) in governing American life. The A.P.A. was intended to protect citizens from arbitrary changes in government policy, recognizing that they do not have the same voice in administrative regulations as they do (theoretically) in the normal, Congressional law-making process.580 In brief, the A.P.A. ensures a basic level of transparency and accountability to the public by requiring public meetings, public notice of proposed regulations and rules, opportunities for public hearings, among other such requirements.581 The A.P.A. also establishes an important standard for the courts in determining the acceptability of an agency’s actions: a court may “hold unlawful and set aside agency action” that it deems to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”582 This prohibits agencies from making changes to its regulations, even if directed by an executive, without following the process stipulated in the A.P.A. This provision does not so much limit the ability of the executive to direct administrative agencies as it ensures that the changes made the discretion of the executive branch and are implemented fairly and made with appropriate notice. III. THE IMMIGRATION AND NATIONALITY ACT The Immigration and Nationality Act of 1952 (amended in 1965) was a significant piece of federal legislation that “re-codified and combined all previous immigration and naturalization law” and “removed all racial barriers to immigration and naturalization.”583 The Act notably established reasons for why foreign nationals may be ineligible for visas584 and codified a vetting process to ensure foreign nationals met numerous requirements for admission into the United States.585 The 1965 amendments also “prohibited

Roni Elias, The Legislative History of the Administrative Procedure Act, 27 FORDHAM ENVTL. L.J. 207-208 (2015). 581 See 5 U.S.C § 552. 582 Id. § 706. 583 U.S. Citizenship and Immigration Services, Overview of INS History, https://www.uscis.gov/sites/default/files/document/fact-sheets/INSHistory.pdf. 584 Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A) (1968); Rose Cuison Villazor & Kevin R. Johnson, The Trump Administration and the War on Immigration Diversity, 54 WAKE FOREST L. REV. 575, 578 (2019). 585 Id. § 1182(f). 580

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discrimination in the issuance of visas on the basis of ‘race, sex, nationality, place of birth, or place of residence.’”586 Most importantly for Trump, the I.N.A. granted presidents broad discretion to suspend the entry of nationals into the United States: “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.587

The I.N.A. entrusts to the president the authority to suspend such entry, for how long, and under what conditions.588 For this reason, this Act was foundational in President Trump’s changes to immigration policy. IV. PRESIDENT TRUMP AND IMMIGRATION Immigration policymaking has been a contentious issue in the United States since before the ratification of the Constitution, and this was no different under President Trump.589 However, to argue that the I.N.A. grants the president unreasonable authority to the sole determinant of immigration policy, one must understand the context in which Trump v. Hawaii arose. A. The 2016 Presidential Campaign One of the defining issues of President Trump’s 2016 campaign was his promised changes in immigration policies. In his speech announcing he would seek the Republican nomination, he declared that he “would build a Villazor & Johnson, supra note 584, at 578-579; see generally Civil Rights Act of 1964, 42 U.S.C. § 1971 et. seq. (1988). 587 Immigration and Nationality Act, 8 U.S.C. § 1182(f) (1968). 588 See Trump, 138 S. Ct. at 2408. 589 E.g., Alien and Sedition Acts (1798), NATIONAL ARCHIVES (Feb. 8, 2022), https://www.archives.gov/milestone-documents/alien-and-seditionacts#:~:text=As%20a%20result%2C%20a%20Federalist,imprisonment%2C%20and%20de portation%20during%20wartime. The Alien and Sedition Acts “raised the residency requirement for citizenship from 5 to 14 years, authorized the president to deport ‘aliens,’ and permitted their arrest, imprisonment, and deportation during wartime.” There was vigorous debate between the Federalists and the Democratic-Republicans when considering the passage of the Alien and Sedition Acts. 586

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great wall… on our southern border” in order to curb illegal immigration from Mexico.590 Over the next several months, President Trump began to ramp up his immigration platform to include restrictions on immigration from several Middle Eastern countries as a response to a perceived increased global threat of terrorism.591 President Trump also proposed the surveillance of some mosques in the United States and a database of Syrian refugees.592 All of these immigration and anti-terrorism proposals were immediately met with intense criticism from Democratic political rivals and from Republicans, accusing President Trump of basing his policies on blatant racism and Islamophobia.593 President Trump denied the accusations; significantly, however, he made no fundamental changes to his policy position. Eventually, after a 2015 terrorist attack in San Bernardino, California, President Trump made an infamous call for “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.”594 The President continued to make similar statements throughout the primary and general elections, and it began a defining policy position of the 2016 presidential campaign. Unsurprisingly, given his campaign’s unrelenting focus on the issue, action on immigration became one of President Trump’s first actions in office, fulfilling one of his main campaign promises via executive order. B. Proclamation No. 9645 In September 2017, President Trump issued Proclamation No. 9645, entitled ‘Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorist or Other Public-Safety Threats.’ After two prior similar executive orders, both of which were struck

Time Staff, Here’s Donald Trump’s Presidential Announcement Speech, TIME (June 16, 2015), https://time.com/3923128/donald-trump-announcement-speech/. 591 Maggie Haberman, Donald Trump Calls for Surveillance of ‘Certain Mosques’ and a Syria Refugee Database, N.Y. TIMES (Nov. 12, 2015), https://www.nytimes.com/2015/11/22/us/politics/donald-trump-syrian-muslimssurveillance.html; Trump, 138 S. Ct. at 2436 (Sotomayor, J., dissenting). 592 Id. 593 E.g., Jessica Taylor, Trump Calls for ‘Total and Complete Shutdown of Muslims Entering’ U.S., NPR (Dec. 7, 2015), https://www.npr.org/2015/12/07/458836388/trumpcalls-for-total-and-complete-shutdown-of-muslims-entering-u-s. 594 Id.; 138 S. Ct. at 2435 (Sotomayor, J., dissenting). 590

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down by federal courts, Proclamation No. 9645 placed entry restrictions on nationals from Chad, Iran, Iraq, Libya, Syria, Yemen, North Korea, and Venezuela.595 These countries were chosen because President Trump determined that the “systems for managing and sharing information about their nationals” were inadequate, and because all of these countries were “previously designated by Congress or prior administrations as posing national security risks.”596 Working with the Department of Homeland Security (D.H.S.) and the State Department, the President developed a baseline regarding the necessary information that foreign governments needed to provide in order for individuals to be properly vetted for entry into the United States.597 The first component of the baseline was identity-management information, which evaluated the integrity of foreign nationals’ travel documents.598 The second component of the baseline was foreign nations’ disclosure of individuals’ criminal history and suspected terrorist links.599 The third component of the baseline was the foreign nations’ indicators of national security risk, such as status as a terrorist safe haven.600 The baseline evidently attempted to list a “comprehensive set of criteria on the information-sharing practices, policies, and capabilities of foreign governments.”601 The Proclamation did not treat all eight identified countries equally; instead, different restrictions were placed on the entry of foreign nationals based on their home countries’ vetting and identification procedures. For instance, foreign nationals from Syria, North Korea, and Iran, countries all of which have been noted to not cooperate with the United States in identifying public safety and terrorist risks, had suspended entry, with the notable exception of Iranians seeking student visas.602 However, the Proclamation suspended the entry of nationals seeking immigration visas and required additional scrutiny of nonimmigrant visas for foreign nationals from Chad, Libya, and Yemen, which were noted to have information-sharing 595 Presidential Proclamation No. 9645, 82 Fed. Reg. 45161 (2017); see Trump v. Hawaii, 138 S. Ct. 2392, 2040. 596 Trump, 138 S. Ct. at 2404, 2421. 597 Id. at 2404. 598 Id. 599 Id. 600 Id. 601 Hawaii v. Trump, 878 F.3d 662, 675 (9th Cir. 2017). 602 Presidential Proclamation No. 9645, 82 Fed. Reg. 45161 (2017).

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deficiencies but were deemed general counterterrorism partners.603 The Proclamation provided case-by-case waivers for nationals from the eight identified countries.604 IV. TAKEN TO THE SUPREME COURT: TRUMP V. HAWAII The Supreme Court granted certiorari to hear Trump v. Hawaii after the Ninth Circuit Court of Appeals concluded that President Trump’s Proclamation “exceeds the scope of his delegated authority” under the INA.605 In Trump, the Supreme Court considered two questions with regard to Proclamation No. 9645. The first question presented was whether the president had the authority under the I.N.A. to issue the Proclamation.606 The second was whether the new promulgated entry policy violated the Establishment Clause of the First Amendment.607 A. The Issue of Authority Under the INA One of the primary questions in Trump was whether the President had the authority under the I.N.A. to issue the Proclamation, and the Court concluded that President Trump “lawfully exercised that discretion based on his findings – following a worldwide, multi-agency review – that entry of the covered aliens would be detrimental to the national interest.”608 The plaintiffs asserted that the Proclamation failed to give a persuasive rationale regarding the 603

Id. Id. Notably, Justice Stephen Breyer in Trump v. Hawaii was extremely skeptical of the waiver program. Justice Breyer wrote “on the one hand, if the Government is applying the exemption and waiver provisions as written, then its argument for the Proclamation’s lawfulness is strengthened… [o]n the other hand, if the Government is not applying the system of exemptions and waivers that the Proclamation contains, then its argument for the Proclamation’s lawfulness becomes significantly weaker.” Justice Breyer concluded in his dissenting opinion that the Government was not applying the exemption and waiver system properly. Trump, 138 S. Ct. at 2430 (Breyer, J., dissenting). 605 Hawaii, 878 F.3d at 673. 606 Trump, 138 S. Ct. at 2403. 607 Id. The Court notably mentioned that the issue before the Court was not whether President Trump’s words struck at “fundamental standards of respect and tolerance, in violation of our constitutional tradition.” The Court only considered the significance of the President’s statements in relation to the Proclamation. Id. at 2418. 608 Id. 604

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deficient vetting procedures of the eight countries included in the Proclamation’s entry restrictions.609 However, the Court reasoned that Section 1182(f) of the I.N.A. only requires the president to make findings regarding the interests of the United States; the I.N.A. does not require the president to explain such findings.610 Therefore, the only requirement for the power to impose restrictions is that the president must find that entry of certain foreign nationals would be detrimental to the United States’ security interests. The majority believed that President Trump fulfilled this requirement since he had ordered D.H.S. and other agencies to evaluate every country’s compliance with the three-component baseline.611 B. Violation of the Establishment Clause Claim The second question before the Court was whether Proclamation No. 9645 violated the Establishment Clause of the First Amendment, which states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”612 The plaintiffs argued that the Proclamation violated the Establishment Clause because they believed the Proclamation singled out Muslims for differential treatment, constituting “religious gerrymander.”613 The respondents also cited President Trump’s rhetoric surrounding the goals of the Proclamation, including his description of it as a “Muslim ban.”614 However, Chief Justice John Roberts, writing for the majority, stated that the Court frequently does not strike down a policy under rational basis scrutiny,615 yet when the Court rarely does so, “a common thread has been that the laws at issue lack any purpose other than a

Id. at 2409. Id. 611 Id. at 2400. 612 U.S. CONST. amend. I. 613 Trump, 138 S. Ct. at 2417. 614 Id. at 2417. 615 The rational basis test is “the criterion for judicial analysis of a statute that does not implicate a fundamental right or a suspect or quasi-suspect classification under the Due Process or Equal Protection Clause, whereby the court will uphold a law if it bears a reasonable relationship to the attainment of a legitimate governmental objective.” Black’s Law Dictionary 652 (5th ed. 2016). 609 610

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‘bare… desire to harm a politically unpopular group.’”616 Chief Justice Roberts asserted that the government provided persuasive evidence that the entry suspension had a legitimate reason with regard to national security concerns (rather than religious hostility) and the Court was obliged to accept the Trump Administration’s justification since “admission and exclusion of foreign nationals is a ‘fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.’”617 Overall, the Court held it was reasonable to conclude that the Proclamation furthered two national security interests: preventing the entry of nationals who could not be properly vetted and inducing nations to improve vetting and documentation practices.618 The Court also mentioned three additional elements that supported the contention that the Proclamation was grounded in legitimate security interests, which obliged the Court to accept such a justification. First, three Muslim-majority countries (Iraq, Sudan, and Chad) had since been removed after improving practices.619 The Court also cited various exceptions for nonimmigrant visas, student visas, and the waiver program as evidence that the Proclamation was grounded in legitimate national security concerns.620 Finally, the Court reasoned that the fact that seven nations with Muslimmajority populations were chosen for restricted entry did not give rise to a reasonable inference that the president was instigating religious hostility. Chief Justice Roberts wrote that “the policy covers just 8% of the world’s Muslim population and is limited to countries that were previously designated by Congress or prior administrations as posing national security risks.”621 V. UNREASONABLE POWER: ISSUES WITH THE IMMIGRATION AND NATIONALITY ACT The Supreme Court considered whether Proclamation No. 9645 exceeded the authority granted in the I.N.A. to a president and whether the

Trump 138 S. Ct. at 2420 (quoting United States Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973)). 617 Id. at 2402 (quoting Fiallo v. Bell, 430 U.S. 787, 792 (1977)). 618 Id. at 2421-22. 619 Id. at 2422. 620 Id. 621 Id. at 2421; see 8 U.S.C. § 1187(a)(12)(A). 616

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Proclamation also violated the Establishment Clause. However, the I.N.A. and Trump fundamentally rest on the question of whether the president should be permitted to “suspend the entry of all aliens or any class of aliens… or impose on the entry of aliens any restrictions he may deem appropriate.”622 This case is thus illustrative of why it is unreasonable to allow the chief executive to make immigration policy decisions. Based on an evaluation of the role of bias, the legislative history of the I.N.A., and the history of immigration policymaking, it is reasonable to conclude that the I.N.A. grants the president too much unfettered power in making immigration policy determinations. A. Unchecked Biases The Court’s decision in Trump can be seen as an illustration of why it is unreasonable to allow a single executive to make the immigration determinations the I.N.A. allows. One of the benefits of Congressional policymaking is that there are 435 members of the House of Representatives and 100 members of the Senate, representing every state and district, all of whom come from a variety of backgrounds, including immigration status, age, race, gender, religion, sexual orientation, and socioeconomic status. This diversity of Congress can play an important role in diminishing the power of implicit biases of lawmakers, while the president, as a single individual, logically cannot encompass such diversity. Implicit biases are “discriminatory biases based on implicit attitudes or implicit stereotypes” and “produce discriminatory behavior.”623 Unfortunately, no individual, including the president, is free from implicit biases. President Trump’s rhetoric regarding immigration policy and immigrants themselves, specifically immigrants from countries in the Middle East, exemplifies strong evidence as to why the president alone should not have the sole authority to make such immigration determinations, especially when civil liberties are at stake. Justice Sonya Sotomayor, in her dissenting opinion in Trump, outlined a number of statements President Trump made which point to his biases regarding the issue of immigration, concluding that “a Immigration and Nationality Act, 8 U.S.C. § 1182(f) (1968). Anthony G. Greenwald & Linda Hamilton Krieger, Implicit Bias: Scientific Foundations, 94 C. L. REV. 945, 951, 961 (2006).

622 623

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reasonable observer would conclude that the Proclamation was driven primarily by anti-Muslim animus, rather than by the Government’s asserted national-security justifications.”624 One of Justice Sotomayor’s examples is President Trump’s statements in March 2016, during which he stated that “‘Islam hates us… [W]e can’t allow people coming into this country who have this hatred of the United States… [a]nd of people that are not Muslim.”625 Justice Sotomayor notes, among other points, that on November 29, 2017, President Trump retweeted three anti-Muslim videos.626 While it might be persuasive and reasonable for the Court to accept President Trump’s concerns for national security based on President Trump’s authority granted under the I.N.A., Trump acts as an exemplary case as to why immigration policy-making at the hands of one individual leaves room for unchecked implicit biases. B. Primary Authority for Immigration Policymaking Proclamation No. 9645 and Trump v. Hawaii also illustrate Congress’ unreasonable grant of authority in the I.N.A. to the president regarding immigration determinations in the I.N.A. Notably, the Ninth Circuit recognized Congress’ hesitation in allowing a president to impose indefinite entry suspensions or restrictions, writing: “[T]he INA grants the President the power to ‘suspend the entry… of any class of aliens’ ‘for such period as he shall deem necessary.’ We note at the outset that broad though the provision may be, the text does not grant the president an unlimited exclusion power. Congress’s choice of words is suggestive, at least, of its hesitation in permitting the President to impose entry suspensions of unlimited and indefinite duration. 627

Even though the I.N.A. does not grant power to the president to impose unlimited and indefinite entry suspensions, the Supreme Court has a long line of precedent recognizing that Congress holds the power to legislate regarding immigration.

Trump 138 S. Ct. at 2438 (Sotomayor, J., dissenting). Id. at 2436. 626 Id. at 2438. These videos were entitled ‘Muslim Destroys a Statue of Virgin Mary!’ , ‘Islamist mob pushes teenage boy off roof and beats him to death!’, and ‘Muslim migrant beats up Dutch boy on crutches!’ 627 Hawaii, 878 F.3d at 684. 624 625

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In Lem Moon Sing v. United States (1895), the Supreme Court concluded that Congress has the power “to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country.”628 In 1909, the same Court affirmed that the authority to legislate regarding immigration belonged to Congress.629 Significantly, in Galvan v. Press (1954), the Supreme Court stated that the formulation of policies pertaining to the entry of nationals and their right to remain in the United States “is entrusted exclusively to Congress” and has become “about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government.”630 This principle was affirmed in 1977 in Fiallo v. Bell.631 Based on these precedents, it is clear that Congress has had and should have primary authority in setting immigration policy. Thus, it is evident that in enacting Section 1128(f) of the Immigration and Nationality Act, Congress unreasonably granted presidents the sole authority to make immigration determinations. V. CONCLUSION The role of implicit bias and Supreme Court precedents regarding Congressional power to make immigration policy decisions shows that it is unreasonable to grant the executive the power to suspend classes of aliens or impose entry restrictions on certain groups. While it is important to recognize that national security is a legitimate and potent concern for the U.S. government, Congress had already enacted significant legislation to restrict the entry of persons deemed a threat to the United States 632 (for instance, individual who has engaged in terrorist activity).633

Lem Moon Sing v. United States, 158 U.S. 538, 547 (1895). See Oceanic Stream Nav. Co. v. Stranahan, 214 U.S. 320, 340 (1909); see generally Adam B. Cox & Cristina M. Rodriguez, The President and Immigration Law, 119 YALE L.J. 458, 483 (2009) (“Throughout the twentieth century, Congress largely maintained control over the formal legal criteria governing the admission and removal of noncitizens to and from the United States”). 630 Galvan v. Press, 347 U.S. 522, 531 (1954). 631 Fiallo v. Bell, 430 U.S. 787, 792 n.4 (1977). 632 Hawaii, 878 F.3d at 685-686 (“With regard to public safety, Congress has created numerous inadmissibility grounds, including an array of crime-related grounds”). 633 8 U.S.C. § 1182(a)(3)(b). 628 629

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Trump v. Hawaii and the I.N.A. have large stakes for the scope of presidential power. The I.N.A. and the issues raised in Trump are indicative of the problems that arise when a president is granted too much authority to make policy determinations. In Trump specifically, the problems surrounding the Proclamation stem from the fact that the I.N.A. grants the president unreasonable authority to make determinations and decisions regarding immigration policies. In general, “Congress has allowed far too much power to drift to the executive branch without adequate safeguards or accountability mechanisms”; thus Congress should begin to reassert its power in policy areas such as immigration.634 *** This Note was edited by Mary Cacevic, Gabriella Mangome, and Sam Wong.

Steve Vladeck, Trump wanted unlimited power. Biden and Congress can ensure no president gets it., MSNBC (Apr. 27, 2021), https://www.msnbc.com/opinion/trumpwanted-unlimited-power-biden-congress-can-ensure-no-president-n1265473. 634

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